H. Rept. 105-830 - IMPEACHMENT OF WILLIAM JEFFERSON CLINTON, PRESIDENT OF THE UNITED STATES105th Congress (1997-1998)

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[From the U.S. Government Publishing Office]
_______________________________________________________________________
105th Congress Report
2d Session HOUSE OF REPRESENTATIVES 105-830
_______________________________________________________________________
IMPEACHMENT OF WILLIAM JEFFERSON CLINTON,
PRESIDENT OF THE UNITED STATES
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REPORT
of the
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
together with
ADDITIONAL, MINORITY, AND DISSENTING VIEWS
to accompany
H. RES. 611
December 16, 1998 (pursuant to clause 2(l)(5) of rule XI).--Referred to
the House Calendar and ordered to be printed
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U.S. GOVERNMENT PRINTING OFFICE
*52-880 WASHINGTON : 1998
COMMITTEE ON THE JUDICIARY
HENRY J. HYDE, Illinois, Chairman
F. JAMES SENSENBRENNER, Jr., JOHN CONYERS, Jr., Michigan
Wisconsin BARNEY FRANK, Massachusetts
BILL McCOLLUM, Florida CHARLES E. SCHUMER, New York
GEORGE W. GEKAS, Pennsylvania HOWARD L. BERMAN, California
HOWARD COBLE, North Carolina RICK BOUCHER, Virginia
LAMAR S. SMITH, Texas JERROLD NADLER, New York
ELTON GALLEGLY, California ROBERT C. SCOTT, Virginia
CHARLES T. CANADY, Florida MELVIN L. WATT, North Carolina
BOB INGLIS, South Carolina ZOE LOFGREN, California
BOB GOODLATTE, Virginia SHEILA JACKSON LEE, Texas
STEPHEN E. BUYER, Indiana MAXINE WATERS, California
ED BRYANT, Tennessee MARTIN T. MEEHAN, Massachusetts
STEVE CHABOT, Ohio WILLIAM D. DELAHUNT, Massachusetts
BOB BARR, Georgia ROBERT WEXLER, Florida
WILLIAM L. JENKINS, Tennessee STEVEN R. ROTHMAN, New Jersey
ASA HUTCHINSON, Arkansas THOMAS M. BARRETT, Wisconsin
EDWARD A. PEASE, Indiana
CHRISTOPHER B. CANNON, Utah
JAMES E. ROGAN, California
LINDSEY O. GRAHAM, South Carolina
MARY BONO, California
Majority Staff
Thomas E. Mooney, Sr., General Counsel-Chief of Staff
Jon W. Dudas, Deputy General Counsel-Staff Director
Diana L. Schacht, Deputy Staff Director-Chief Counsel
Daniel M. Freeman, Parliamentarian-Counsel
Paul J. McNulty, Director of Communications-Chief Counsel
Joseph H. Gibson, Chief Counsel
Rick Filkins, Counsel
Sharee M. Freeman, Counsel
Peter J. Levinson, Counsel
John F. Mautz, IV, Counsel
William E. Moschella, Counsel
Stephen Pinkos, Counsel
George M. Fishman, Chief Counsel David P. Schippers, Chief
Mitch Glazier, Chief Counsel Investigative Counsel
John H. Ladd, Chief Counsel
Raymond V. Smietanka, Chief Counsel Susan Bogart, Investigative
Laura Ann Baxter, Counsel Counsel
Daniel J. Bryant, Counsel Robert S. Hoover, Counsel
Cathleen A. Cleaver, Counsel John C. Kocoras, Counsel
Vince Garlock, Counsel Berle S. Littmann, Investigator
James W. Harper, Counsel Stephen P. Lynch, Professional
Susan Jensen-Conklin, Counsel Staff Member
Debra K. Laman, Counsel Charles F. Marino, Counsel
Blaine S. Merritt, Counsel Jeffrey J. Pavletic, Investigative
Nicole R. Nason, Counsel Counsel
Glenn R. Schmitt, Counsel Thomas M. Schippers, Investigative
Jim Y. Wilon, Counsel Counsel
Albert F. Tracy, Investigator
Peter J. Wacks, Investigator
Diana L. Woznicki, Investigator
Minority Staff
Julian Epstein, Minority Chief Counsel-Staff Director
Perry H. Apelbaum, Minority General Abbe D. Lowell, Minority Chief
Counsel Investigative Counsel
David G. Lachmann, Counsel Sampak P. Garg, Investigative
Cynthia A. R. Martin, Counsel Counsel
Henry Moniz, Counsel Steven F. Reich, Investigative
Stephanie J. Peters, Counsel Counsel
Samara T. Ryder, Counsel Deborah L. Rhode, Investigative
Brian P. Woolfolk, Counsel Counsel
Kevin M. Simpson, Investigative
Counsel
Lis W. Wiehl, Investigative
Counsel
C O N T E N T S
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Page
Articles of Impeachment.......................................... 2
I. Introduction.....................................................5
II. Narrative........................................................7
A. The Paula Jones Litigation.............................. 7
B. The Relationship Between President Clinton and Monica
Lewinsky................................................. 7
C. GThe Events of December 5-6, 1997--President Clinton
Learns Ms. Lewinsky is on the Witness List............... 8
D. The Search for a Job for Ms. Lewinsky................... 10
E. GThe Events of December 17, 1997--President Clinton
Informs Ms. Lewinsky that She is on the Witness List..... 11
F. GThe Events of December 19, 1997--Ms. Lewinsky Receives
a Subpoena............................................... 14
G. The Events of December 28, 1997--Ms. Currie Retrieves
the Gifts................................................ 15
H. GThe Events of January 5-9, 1997--Ms. Lewinsky Signs the
False Affidavit and Gets the Job......................... 17
I. The Filing of the False Affidavit....................... 19
J. GThe Events of January 17, 1998--President Clinton and
Mr. Bennett at the Deposition............................ 20
K. The Events of Late January, 1998--The Deposition
Aftermath................................................ 21
L. The Events of August 17, 1998--The Grand Jury Testimony. 28
M. Answers to the Committee's Requests for Admission....... 32
III. Explanation of Articles of Impeachment..........................32
A. Article I--Perjury in the Grand Jury.................... 32
1. The Committee concluded that, on August 17, 1998,
the President provided perjurious, false, and
misleading testimony to a Federal grand jury
concerning the nature and details of his relationship
with a subordinate government employee............... 33
2. The Committee concluded that the President provided
perjurious, false, and misleading testimony to a
Federal grand jury concerning prior perjurious,
false, and misleading testimony he gave in a federal
civil rights action brought against him.............. 38
3. The Committee concluded that the President provided
perjurious, false, and misleading testimony to a
Federal grand jury concerning prior perjurious,
false, and misleading statements he allowed his
attorney to make to a Federal judge in that civil
rights action........................................ 40
4. The Committee concluded that the President provided
perjurious, false, and misleading testimony to a
Federal grand jury concerning his corrupt efforts to
influence the testimony of witnesses and to impede
the discovery of evidence in that civil rights
action............................................... 42
a. The President gave perjurious, false, and
misleading testimony before the grand jury when
he denied engaging in a plan to hide evidence
that had been subpoenaed in the federal civil
rights action against him........................ 42
b. The President made perjurious, false, and
misleading statements before the grand jury
regarding his knowledge that the contents of an
affidavit executed by a subordinate federal
employee who was a witness in the federal civil
rights action brought against him were untrue.... 46
c. The President made perjurious, false, and
misleading statements before the grand jury when
he recited a false account of the facts regarding
his interactions with Monica Lewinsky to Betty
Currie, a potential witness in the federal civil
rights action brought against him................ 48
d. The President made perjurious, false, and
misleading statements before the grand jury
concerning statements he made to aides regarding
his relationship with Monica Lewinsky............ 49
5. Explanation of the Rogan Amendment to Article I..... 52
B. Article II--Perjury in the Civil Case................... 53
1. The Committee concluded that the President provided
perjurious, false, and misleading testimony in a
Federal civil rights action in response to written
questions............................................ 53
2. The Committee concluded that the President provided
perjurious, false, and misleading testimony in a
Federal civil rights action in his deposition........ 54
a. The President lied in his deposition about the
nature of his conduct with a subordinate federal
employee who was a witness in the federal civil
rights action brought against him................ 54
b. The President lied in his deposition after being
asked if anyone had reported to him within the
past two weeks that they had had a conversation
with a subordinate federal employee concerning
the Jones v. Clinton lawsuit..................... 56
c. The President lied in his deposition about his
being alone or in certain locations with a
subordinate federal employee who was a witness in
the action brought against him................... 57
d. The President lied in his deposition about his
knowledge of gifts exchanged between himself and
a subordinate federal employee who was a witness
in the action brought against him................ 59
e. The President lied in his deposition about his
knowledge about whether he had ever spoken to a
subordinate federal employee about the
possibility that such subordinate employee might
be called as a witness to testify in the federal
civil rights action brought against him.......... 61
f. The President lied in his deposition about his
knowledge of the service of a subpoena to a
subordinate federal employee to testify as a
witness in the federal civil rights action
brought against him.............................. 62
g. The President lied in his deposition about his
knowledge of the final conversation he had with a
subordinate employee who was a witness in the
federal civil rights action brought against him.. 62
h. The President lied in his deposition about his
knowledge that the contents of an affidavit
executed by a subordinate federal employee who
was a witness in the federal civil rights action
brought against him.............................. 63
C. Article III--Obstruction of Justice..................... 63
1. The Committee concluded that on or about December
17, 1997, William Jefferson Clinton corruptly
encouraged a witness in a Federal civil rights action
brought against him to execute a sworn affidavit in
that proceeding that he knew to be perjurious, false,
and misleading....................................... 64
2. The Committee concluded that on or about December
17, 1997, William Jefferson Clinton corruptly
encouraged a witness in a Federal civil rights action
brought against him to give perjurious, false, and
misleading testimony if and when called to testify
personally in that proceeding........................ 65
3. The Committee concluded that on or about December
28, 1997, William Jefferson Clinton corruptly engaged
in, encouraged, or supported a scheme to conceal
evidence that had been subpoenaed in a Federal civil
rights action brought against him.................... 66
4. The Committee concluded that beginning on or about
December 7, 1997, and continuing through and
including January 14, 1998, William Jefferson Clinton
intensified and succeeded in an effort to secure job
assistance for a witness in a Federal civil rights
action brought against him in order to corruptly
prevent the truthful testimony of that witness in
that proceeding at a time when the truthful testimony
of that witness would have been harmful to him....... 69
5. The Committee concluded that on January 17, 1998, at
his deposition in a Federal civil rights action
brought against him, William Jefferson Clinton
corruptly allowed his attorney to make false and
misleading statements to a Federal judge
characterizing an affidavit, in order to prevent
questioning deemed relevant by the judge. Such false
and misleading statements were subsequently
acknowledged by his attorney in a communication to
that judge........................................... 72
6. The Committee concluded that on or about January 18
and January 20-21, 1998, William Jefferson Clinton
related a false and misleading account of events
relevant to a Federal civil rights action brought
against him to a potential witness in that
proceeding, in order to corruptly influence the
testimony of that witness............................ 73
7. The Committee concluded that on or about January 21,
23, and 26, 1998, William Jefferson Clinton made
false and misleading statements to potential
witnesses in a Federal grand jury proceeding in order
to corruptly influence the testimony of those
witnesses. The false and misleading statements made
by William Jefferson Clinton were repeated by the
witnesses to the grand jury, causing the grand jury
to receive false and misleading information.......... 75
D. Article IV--Abuse of Power.............................. 76
1. The President abused his power by refusing and
failing to respond to certain written requests for
admission and willfully made perjurious, false, and
misleading sworn statements in response to certain
written requests for admission propounded to him by
the Committee........................................ 76
a. Request for Admission Number 19................. 77
b. Request for Admission Number 20................. 78
c. Request for Admission Number 24................. 79
d. Request for Admission Number 26................. 79
e. Request for Admission Number 27................. 80
f. Request for Admission Number 34................. 80
g. Request for Admission Number 42................. 81
h. Request for Admission Number 43................. 82
i. Request for Admission Number 52................. 82
j. Request for Admission Number 53................. 83
2. Explanation of the Gekas Amendment to Article IV.... 84
IV. The Constitutional Process of Impeachment..................106
A. General Arguments About Impeachment..................... 106
1. Constitutional Provisions........................... 106
2. Impeachment is Not Removal from Office.............. 106
3. Impeachment Does Not Overturn an Election........... 107
4. A Senate Trial of an Impeachment is a Constitutional
Process.............................................. 107
B. Articles of Impeachment Against President Clinton....... 108
1. Article I--Grand Jury Perjury....................... 108
a. Facts........................................... 108
b. Lessons from the Judicial Impeachments of the
1980s............................................ 110
i. Federal Judges v. Presidents.................. 110
ii. Perjurious, False, and Misleading Statements
Made Under Oath or Subject to Penalty for
Perjury........................................ 113
a. Judge Harry E. Claiborne.................... 113
b. Judge Walter Nixon.......................... 114
c. Judge Alcee Hastings........................ 115
d. Conclusion.................................. 115
iii. Conduct Not Related to Official Duties...... 115
2. Article II--Perjury in the Civil Case............... 118
3. Article III--Obstruction of Justice................. 119
a. Lessons from the Impeachment of President Nixon. 119
b. Federal Obstruction of Justice Statutes......... 120
4. Article IV--Abuse of Power.......................... 121
V. Committee Consideration of Impeachment Proceedings.............123
A. Votes of the Committee.................................. 128
1. Rollcall No. 1--Amendment to Article I Offered by
Rep. Rogan........................................... 128
2. Rollcall No. 2--Article I........................... 129
3. Rollcall No. 3--Article II.......................... 130
4. Rollcall No. 4--Article III......................... 131
5. Rollcall No. 5--Amendment to Article IV Offered by
Rep. Gekas........................................... 132
6. Rollcall No. 6--Article IV.......................... 134
7. Rollcall No. 7--Censure Resolution.................. 135
B. Committee Oversight Findings............................ 136
C. Committee on Government Reform and Oversight Findings... 136
D. New Budget Authority and Tax Expenditures............... 136
E. Committee Cost Estimate................................. 136
F. Constitutional Authority................................ 137
VI. Arguments About Censure........................................137
A. Prohibited Bill of Attainder............................ 137
B. Censure of President Andrew Jackson..................... 139
VII. Additional Views...............................................143
VIII.Minority Views.................................................200
IX. Dissenting Views...............................................279
X. Appendices.....................................................307
Appendix A. House Resolution 525........................... 307
Appendix B. House Resolution 581........................... 308
Appendix C. Correspondence................................. 309
Appendix D. The Committee's 81 Requests to the President
for Admission, the President's Responses, and Citations
to Relevant Parts of the Record Provided by the
Committee's Majority Staff............................... 400
105th Congress Report
2d Session HOUSE OF REPRESENTATIVES 105-830
=======================================================================
IMPEACHMENT OF WILLIAM JEFFERSON CLINTON, PRESIDENT OF THE UNITED
STATES
_______
December 16, 1998.--Referred to the House Calendar and ordered to be
printed
_______
Mr. Hyde, from the Committee on the Judiciary, submitted the following
R E P O R T
together with
ADDITIONAL, MINORITY, AND DISSENTING VIEWS
The Committee on the Judiciary, to whom was referred the
consideration of recommendations concerning the exercise of the
constitutional power to impeach William Jefferson Clinton,
President of the United States, having considered the same,
reports thereon pursuant to H. Res. 581 as follows and
recommends that the House exercise its constitutional power to
impeach William Jefferson Clinton, President of the United
States, and that articles of impeachment be exhibited to the
Senate as follows:
RESOLUTION
Impeaching William Jefferson Clinton, President of the
United States, for high crimes and misdemeanors.
Resolved, That William Jefferson Clinton, President of the
United States, is impeached for high crimes and misdemeanors,
and that the following articles of impeachment be exhibited to
the United States Senate:
Articles of impeachment exhibited by the House of
Representatives of the United States of America in the name of
itself and of the people of the United States of America,
against William Jefferson Clinton, President of the United
States of America, in maintenance and support of its
impeachment against him for high crimes and misdemeanors.
Article I
In his conduct while President of the United States,
William Jefferson Clinton, in violation of his constitutional
oath faithfully to execute the office of President of the
United States and, to the best of his ability, preserve,
protect, and defend the Constitution of the United States, and
in violation of his constitutional duty to take care that the
laws be faithfully executed, has willfully corrupted and
manipulated the judicial process of the United States for his
personal gain and exoneration, impeding the administration of
justice, in that:
On August 17, 1998, William Jefferson Clinton swore to tell
the truth, the whole truth, and nothing but the truth before a
Federal grand jury of the United States. Contrary to that oath,
William Jefferson Clinton willfully provided perjurious, false
and misleading testimony to the grand jury concerning one or
more of the following: (1) the nature and details of his
relationship with a subordinate Government employee; (2) prior
perjurious, false and misleading testimony he gave in a Federal
civil rights action brought against him; (3) prior false and
misleading statements he allowed his attorney to make to a
Federal judge in that civil rights action; and (4) his corrupt
efforts to influence the testimony of witnesses and to impede
the discovery of evidence in that civil rights action.
In doing this, William Jefferson Clinton has undermined the
integrity of his office, has brought disrepute on the
Presidency, has betrayed his trust as President, and has acted
in a manner subversive of the rule of law and justice, to the
manifest injury of the people of the United States.
Wherefore, William Jefferson Clinton, by such conduct,
warrants impeachment and trial, and removal from office and
disqualification to hold and enjoy any office of honor, trust,
or profit under the United States.
Article II
In his conduct while President of the United States,
William Jefferson Clinton, in violation of his constitutional
oath faithfully to execute the office of President of the
United States and, to the best of his ability, preserve,
protect, and defend the Constitution of the United States, and
in violation of his constitutional duty to take care that the
laws be faithfully executed, has willfully corrupted and
manipulated the judicial process of the United States for his
personal gain and exoneration, impeding the administration of
justice, in that:
(1) On December 23, 1997, William Jefferson Clinton,
in sworn answers to written questions asked as part of
a Federal civil rights action brought against him,
willfully provided perjurious, false and misleading
testimony in response to questions deemed relevant by a
Federal judge concerning conduct and proposed conduct
with subordinate employees.
(2) On January 17, 1998, William Jefferson Clinton
swore under oath to tell the truth, the whole truth,
and nothing but the truth in a deposition given as part
of a Federal civil rights action brought against him.
Contrary to that oath, William Jefferson Clinton
willfully provided perjurious, false and misleading
testimony in response to questions deemed relevant by a
Federal judge concerning the nature and details of his
relationship with a subordinate Government employee,
his knowledge of that employee's involvement and
participation in the civil rights action brought
against him, and his corrupt efforts to influence the
testimony of that employee.
In all of this, William Jefferson Clinton has undermined
the integrity of his office, has brought disrepute on the
Presidency, has betrayed his trust as President, and has acted
in a manner subversive of the rule of law and justice, to the
manifest injury of the people of the United States.
Wherefore, William Jefferson Clinton, by such conduct,
warrants impeachment and trial, and removal from office and
disqualification to hold and enjoy any office of honor, trust,
or profit under the United States.
Article III
In his conduct while President of the United States,
William Jefferson Clinton, in violation of his constitutional
oath faithfully to execute the office of President of the
United States and, to the best of his ability, preserve,
protect, and defend the Constitution of the United States, and
in violation of his constitutional duty to take care that the
laws be faithfully executed, has prevented, obstructed, and
impeded the administration of justice, and has to that end
engaged personally, and through his subordinates and agents, in
a course of conduct or scheme designed to delay, impede, cover
up, and conceal the existence of evidence and testimony related
to a Federal civil rights action brought against him in a duly
instituted judicial proceeding.
The means used to implement this course of conduct or
scheme included one or more of the following acts:
(1) On or about December 17, 1997, William Jefferson
Clinton corruptly encouraged a witness in a Federal
civil rights action brought against him to execute a
sworn affidavit in that proceeding that he knew to be
perjurious, false and misleading.
(2) On or about December 17, 1997, William Jefferson
Clinton corruptly encouraged a witness in a Federal
civil rights action brought against him to give
perjurious, false and misleading testimony if and when
called to testify personally in that proceeding.
(3) On or about December 28, 1997, William Jefferson
Clinton corruptly engaged in, encouraged, or supported
a scheme to conceal evidence that had been subpoenaed
in a Federal civil rights action brought against him.
(4) Beginning on or about December 7, 1997, and
continuing through and including January 14, 1998,
William Jefferson Clinton intensified and succeeded in
an effort to secure job assistance to a witness in a
Federal civil rights action brought against him in
order to corruptly prevent the truthful testimony of
that witness in that proceeding at a time when the
truthful testimony of that witness would have been
harmful to him.
(5) On January 17, 1998, at his deposition in a
Federal civil rights action brought against him,
William Jefferson Clinton corruptly allowed his
attorney to make false and misleading statements to a
Federal judge characterizing an affidavit, in order to
prevent questioning deemed relevant by the judge. Such
false and misleading statements were subsequently
acknowledged by his attorney in a communication to that
judge.
(6) On or about January 18 and January 20-21, 1998,
William Jefferson Clinton related a false and
misleading account of events relevant to a Federal
civil rights action brought against him to a potential
witness in that proceeding, in order to corruptly
influence the testimony of that witness.
(7) On or about January 21, 23 and 26, 1998, William
Jefferson Clinton made false and misleading statements
to potential witnesses in a Federal grand jury
proceeding in order to corruptly influence the
testimony of those witnesses. The false and misleading
statements made by William Jefferson Clinton were
repeated by the witnesses to the grand jury, causing
the grand jury to receive false and misleading
information.
In all of this, William Jefferson Clinton has undermined
the integrity of his office, has brought disrepute on the
Presidency, has betrayed his trust as President, and has acted
in a manner subversive of the rule of law and justice, to the
manifest injury of the people of the United States.
Wherefore, William Jefferson Clinton, by such conduct,
warrants impeachment and trial, and removal from office and
disqualification to hold and enjoy any office of honor, trust,
or profit under the United States.
Article IV
Using the powers and influence of the office of President
of the United States, William Jefferson Clinton, in violation
of his constitutional oath faithfully to execute the office of
President of the United States and, to the best of his ability,
preserve, protect, and defend the Constitution of the United
States, and in disregard of his constitutional duty to take
care that the laws be faithfully executed, has engaged in
conduct that resulted in misuse and abuse of his high office,
impaired the due and proper administration of justice and the
conduct of lawful inquiries, and contravened the authority of
the legislative branch and the truth seeking purpose of a
coordinate investigative proceeding, in that, as President,
William Jefferson Clinton refused and failed to respond to
certain written requests for admission and willfully made
perjurious, false and misleading sworn statements in response
to certain written requests for admission propounded to him as
part of the impeachment inquiry authorized by the House of
Representatives of the Congress of the United States. William
Jefferson Clinton, in refusing and failing to respond and in
making perjurious, false and misleading statements, assumed to
himself functions and judgments necessary to the exercise of
the sole power of impeachment vested by the Constitution in the
House of Representatives and exhibited contempt for the
inquiry.
In doing this, William Jefferson Clinton has undermined the
integrity of his office, has brought disrepute on the
Presidency, has betrayed his trust as President, and has acted
in a manner subversive of the rule of law and justice, to the
manifest injury of the people of the United States.
Wherefore, William Jefferson Clinton, by such conduct,
warrants impeachment and trial, and removal from office and
disqualification to hold and enjoy any office of honor, trust,
or profit under the United States.
I. INTRODUCTION
``Equal Justice Under Law''--That principle so embodies the
American constitutional order that we have carved it in stone
on the front of our Supreme Court. The carving shines like a
beacon from the highest sanctum of the Judicial Branch across
to the Capitol, the home of the Legislative Branch, and down
Pennsylvania Avenue to the White House, the home of the
Executive Branch. It illuminates our national life and reminds
those other branches that despite the tumbling tides of
politics, ours is a government of laws and not of men. It was
the inspired vision of our founders and framers that the
Judicial, Legislative, and Executive branches would work
together to preserve the rule of law.
But ``Equal Justice Under Law'' amounts to much more than a
stone carving. Although we cannot see or hear it, this living,
breathing force has real consequences in the lives of average
citizens every day. Ultimately, it protects us from the knock
on the door in the middle of the night. More commonly, it
allows us to claim the assistance of the government when
someone has wronged us--even if that person is stronger or
wealthier or more popular than we are. In America, unlike other
countries, when the average citizen sues the Chief Executive of
our nation, they stand equal before the bar of justice. The
Constitution requires the judicial branch of our government to
apply the law equally to both. That is the living consequence
of ``Equal Justice Under Law.''
The President of the United States must work with the
Judicial and Legislative branches to sustain that force. The
temporary trustee of that office, William Jefferson Clinton,
worked to defeat it. When he stood before the bar of justice,
he acted without authority to award himself the special
privileges of lying and obstructing to gain an advantage in a
federal civil rights action in the United States District Court
for the Eastern District of Arkansas, in a federal grand jury
investigation in the United States District Court for the
District of Columbia, and in an impeachment inquiry in the
United States House of Representatives. His resistance brings
us to this most unfortunate juncture.
So ``Equal Justice Under Law'' lies at the heart of this
matter. It rests on three essential pillars: an impartial
judiciary, an ethical bar, and a sacred oath. If litigants
profane the sanctity of the oath, ``Equal Justice Under Law''
loses its protective force. Against that backdrop, consider the
actions of President Clinton.
On May 27, 1997, the nine justices of the Supreme Court of
the United States unanimously ruled that Paula Corbin Jones
could pursue her federal civil rights action against William
Jefferson Clinton. Clinton v. Jones, 520 U.S. 681 (1997). On
December 11, 1997, United States District Judge Susan Webber
Wright ordered President Clinton to provide Ms. Jones with
answers to certain routine questions relevant to the lawsuit.
Acting under the authority of these court orders, Ms. Jones
exercised her rights--rights that every litigant has under our
system of justice. She sought answers from President Clinton to
help her prove her case against him--just as President Clinton
sought and received answers from her. President Clinton used
numerous means to prevent her from getting truthful answers.
On December 17, 1997, he encouraged a witness, whose
truthful testimony would have helped Ms. Jones, to file a false
affidavit in the case and to testify falsely if she were called
to testify in the case. On December 23, 1997, he provided,
under oath, false written answers to Ms. Jones's questions. On
December 28, 1997, he began an effort to get the witness to
conceal evidence that would have helped Ms. Jones. Throughout
this period, he intensified efforts to provide the witness with
help in getting a job to ensure that she carried out his
designs.
On January 17, 1998, President Clinton provided, under
oath, numerous false answers to Ms. Jones's questions during
his deposition. In the days immediately following the
deposition, he provided a false and misleading account to
another witness, Betty Currie, in hopes that she would
substantiate the false testimony he gave in the deposition.
These actions denied Ms. Jones her rights as a litigant,
subverted the fundamental truth seeking function of the United
States District Court for the Eastern District of Arkansas, and
violated President Clinton's constitutional oath to ``preserve,
protect and defend the Constitution of the United States'' and
his constitutional duty to ``take care that the laws be
faithfully executed.''
Beginning shortly after his deposition, President Clinton
became aware that a federal grand jury empaneled by the United
States District Court for the District of Columbia was
investigating his actions before and during his civil
deposition. President Clinton made numerous false statements to
potential grand jury witnesses in hopes that they would repeat
these statements to the grand jury. On August 17, 1998,
President Clinton appeared before the grand jury by video and,
under oath, provided numerous false answers to the questions
asked. These actions impeded the grand jury's investigation,
subverted the fundamental truth seeking function of the United
States District Court for the District of Columbia, and
violated President Clinton's constitutional oath to ``preserve,
protect and defend the Constitution of the United States'' and
his constitutional duty to ``take care that the laws be
faithfully executed.''
President Clinton's actions then led to this inquiry. On
October 8, 1998, the United States House of Representatives
passed House Resolution 581 directing the Committee on the
Judiciary to begin an inquiry to determine whether President
Clinton should be impeached. As part of that inquiry, the
Committee sent written requests for admission to him. On
November 27, 1998, President Clinton provided, under oath,
numerous false statements to this Committee in response to the
requests for admission. These actions impeded the committee's
inquiry, subverted the fundamental truth seeking function of
the United States House of Representatives in exercising the
sole power of impeachment, and violated President Clinton's
constitutional oath to ``preserve, protect and defend the
Constitution of the United States'' and his constitutional duty
to ``take care that the laws be faithfully executed.''
By these actions, President Clinton violated the sanctity
of the oath without which ``Equal Justice Under Law'' cannot
survive. Rather than work with the Judicial and Legislative
branches to uphold the rule of law, he directly attacked their
fundamental truth seeking function. He has disgraced himself
and the high office he holds. His high crimes and misdemeanors
undermine our Constitution. They warrant his impeachment, his
removal from office, and his disqualification from holding
further office.
II. NARRATIVE
A. The Paula Jones Litigation
On May 6, 1994, Paula Corbin Jones filed a federal civil
rights lawsuit against President Clinton in the United States
District Court for the Eastern District of Arkansas. This
lawsuit arose out of an incident that Ms. Jones alleged
occurred in 1991 while she was an Arkansas state employee and
President Clinton was Governor of Arkansas. Ms. Jones alleged
that then Governor Clinton had an Arkansas state trooper invite
Ms. Jones to his hotel room where he made a crude sexual
advance toward her and she rejected it.
After Ms. Jones brought the lawsuit, President Clinton
claimed that the Constitution requires that any such lawsuit be
deferred until his term ended. The parties litigated this
question, and ultimately the Supreme Court of the United States
decided unanimously that Ms. Jones could proceed with her
lawsuit without waiting for President Clinton's term to end.
Clinton v. Jones, 520 U.S. 681 (1997).
The discovery phase of the lawsuit began shortly
thereafter. During the discovery phase, Judge Susan Webber
Wright of the United States District Court for the Eastern
District of Arkansas ordered President Clinton to answer
certain questions about any history he had of involvement in
sexual relationships with state or federal employees. Such
questions are standard in sexual harassment lawsuits, and they
help to establish whether the defendant has engaged in a
pattern and practice of harassing conduct. President Clinton's
efforts to resist giving truthful answers to these questions
gave rise to this matter.
B. The Relationship Between President Clinton and Monica Lewinsky
Monica Lewinsky, a 21-year-old intern, was working at the
White House during the government shutdown in November, 1995.
Before their first intimate encounter, she had never even
spoken with the President. Sometime on November 15, 1995, Ms.
Lewinsky made an improper gesture to the President. Rather than
rebuff the gesture, President Clinton invited this unknown
young intern into a private area off the Oval Office, where he
kissed her. He then invited her back to the same area later
that day. When she returned, the two engaged in the first of
many acts of inappropriate sexual contact.
Thereafter, the two continued their secret liaisons, and
they concocted a cover story to use if they were discovered. If
Ms. Lewinsky was seen, she was to say she was bringing papers
to the President. That story was false. The only papers she
brought were personal messages having nothing to do with her
duties or the President's. After Ms. Lewinsky moved from the
White House to the Pentagon, she and President Clinton
disguised her frequent visits to the White House as visits to
Betty Currie. Those cover stories play a vital role in the
later perjuries and obstruction of justice.
Over the term of their relationship the following
significant matters occurred:
1. Monica Lewinsky and President Clinton were alone
on at least 21 occasions;
2. They had at least eleven personal sexual
encounters, other than phone sex: 3 in 1995, 5 in 1996,
and 3 in 1997;
3. They had at least 55 telephone conversations, at
least 17 of which involved phone sex;
4. President Clinton gave Ms. Lewinsky 24 presents;
and,
5. Ms. Lewinsky gave President Clinton 40 presents.
See generally Appendices at 116-26.
These essential facts form the backdrop for all of the
subsequent events. During the fall of 1997, the relationship
was largely dormant. Ms. Lewinsky was working at the Pentagon
and looking for a high paying job in New York. Discovery in the
Paula Jones case was proceeding slowly, and no one seemed to
care about the outcome. Then, in the first week of December
1997, things began to unravel.
The sexual details of the President's encounters with Ms.
Lewinsky need not be described in detail. However, those
encounters are highly relevant because the President repeatedly
lied about that sexual relationship in the civil case, before
the grand jury, and in his responses to this Committee's
questions. In an effort to support the original lies he told in
the civil case, he has consistently maintained that Ms.
Lewinsky performed sexual acts on him, while he never touched
her in a sexual manner. President Clinton's characterization of
the relationship directly contradicts Ms. Lewinsky's testimony,
the sworn grand jury testimony of three of her friends, and the
statements by two professional counselors with whom Ms.
Lewinsky contemporaneously shared the details of her
relationship.
C. The Events of December 5-6, 1997--President Clinton Learns Ms.
Lewinsky is on the Witness List
On Friday, December 5, 1997, Ms. Lewinsky asked Betty
Currie, President Clinton's personal secretary, if President
Clinton could see her the next day, Saturday. Ms. Currie said
that he was scheduled to meet with his lawyers all day.
Lewinsky 8/6/98 GJT at 107-08. Later that Friday, Ms. Lewinsky
spoke briefly to President Clinton at a Christmas party.
Lewinsky 7/31/98 302 at 1; Lewinsky 8/6/98 GJT at 108.
That evening, Paula Jones's attorneys faxed a list of
potential witnesses to President Clinton's attorneys. The list
included the name of Ms. Lewinsky. However, Ms. Lewinsky did
not find out that her name was on the list until President
Clinton told her ten days later on December 17. Lewinsky 8/6/98
GJT at 121-23. That delay is significant.
After her conversation with Ms. Currie and her conversation
with President Clinton at the Christmas party, Ms. Lewinsky
drafted a letter to President Clinton terminating their
relationship. Lewinsky 7/31/98 302 at 2. The next morning,
Saturday, December 6, Ms. Lewinsky went to the White House to
deliver the letter and some gifts for President Clinton to Ms.
Currie. Lewinsky 8/6/98 GJT at 108-09. When she arrived at the
White House, Ms. Lewinsky spoke to several Secret Service
officers, and one of them told her that President Clinton was
not with his lawyers, as she had been told, but rather, he was
meeting with another woman. Lewinsky 8/6/98 GJT at 111; Mondale
7/16/98 302 at 1. Ms. Lewinsky called Ms. Currie from a pay
phone, angrily exchanged words with her, and went home.
Lewinsky 8/6/98 GJT at 112-13; Currie 1/27/98 GJT at 37. After
that phone call, Ms. Currie told the Secret Service watch
commander that President Clinton was so upset about the
disclosure of his meeting with the woman that he wanted to fire
someone. Purdie 7/23/98 GJT at 13, 18-19.
At 12:05 p.m. on December 6th, records demonstrate that Ms.
Currie paged Bruce Lindsey with the message: ``Call Betty
ASAP.'' Around that same time, according to Ms. Lewinsky, while
she was back at her apartment, Ms. Lewinsky and President
Clinton spoke on the telephone. President Clinton was very
angry; he told Ms. Lewinsky that no one had ever treated him as
poorly as she had. Lewinsky 8/6/98 GJT at 113-14. President
Clinton acknowledged to the grand jury that he was upset about
Ms. Lewinsky's behavior and considered it inappropriate.
Clinton 8/17/98 GJT at 85. Nevertheless, in a sudden change of
mood, he invited her to visit him at the White House that
afternoon. Lewinsky 8/6/98 GJT at 114.
Ms. Lewinsky arrived at the White House for the second time
that day, and she was cleared to enter at 12:52 p.m. Although,
in Ms. Lewinsky's words, the President was ``very angry'' with
her during their recent telephone conversation, he was
``sweet'' and ``very affectionate'' during this visit. Lewinsky
8/6/98 GJT at 113-15. He also told her that he would talk to
Vernon Jordan, a Washington lawyer and close personal friend of
President Clinton's, about her job situation. Lewinsky 8/6/98
GJT at 115-16.
President Clinton also suddenly changed his attitude toward
the Secret Service. Ms. Currie informed some officers that if
they kept quiet about the Lewinsky incident, they would not be
disciplined. Currie 7/22/98 GJT at 91-92; Williams 7/23/98 GJT
at 25, 27-28; Chinery 7/23/98 GJT at 22-23. According to the
Secret Service watch commander, Captain Jeffrey Purdie, the
President personally told him, ``I hope you use your
discretion'' or ``I hope I can count on your discretion.''
Purdie 7/17/98 GJT at 3, 7/23/98 GJT at 32. Deputy Chief
Charles O'Malley, Captain Purdie's supervisor, testified that
he knew of no other incident in his fourteen years of service
at the White House in which a President raised a performance
issue with a member of the Secret Service Uniformed Division.
O'Malley 9/8/98 Dep. at 40-41. After his conversation with
President Clinton, Captain Purdie told a number of officers
that they should not discuss the Lewinsky incident. Porter 8/
13/98 GJT at 12; Niedzwiecki 7/30/98 GJT at 30-31.
When President Clinton was questioned before the grand jury
about his statements to the Secret Service, he testified ``I
don't remember what I said and I don't remember to whom I said
it.'' Clinton 8/17/98 GJT at 86. When confronted with Captain
Purdie's testimony, the President testified, ``I don't remember
anything I said to him in that regard. I have no recollection
of that whatever.'' Clinton 8/17/98 GJT at 91.
President Clinton testified before the grand jury that he
learned that Ms. Lewinsky was on the Jones witness list that
evening, Saturday, December 6, during a meeting with his
lawyers. Clinton 8/17/98 GJT at 83-84. He stood by this answer
in response to Request Number 16 submitted by this Committee.
The meeting occurred around 5 p.m., after Ms. Lewinsky had left
the White House. Lindsey 3/12/98 GJT at 64-66. According to
Bruce Lindsey, at the meeting, Robert Bennett, the President's
attorney, had a copy of the Jones witness list which had been
faxed to Bennett the previous night. Lindsey 3/12/98 GJT at 65-
67.
However, during his deposition, President Clinton testified
that he had heard about the witness list before he saw it.
Clinton 1/17/98 Dep. at 70. In other words, if President
Clinton testified truthfully in his deposition, then he knew
about the witness list before the 5 p.m. meeting. It is
reasonable to infer that hearing Ms. Lewinsky's name on a
witness list prompted President Clinton's sudden and otherwise
unexplained change from ``very angry'' to ``very affectionate''
that Saturday afternoon. It is also reasonable to infer that it
prompted him to give the unique instruction to a Secret Service
watch commander to use ``discretion'' regarding Ms. Lewinsky's
visit to the White House, which the watch commander interpreted
as an instruction to remain silent about the incident. Purdie
7/17/98 GJT at 20-21.
D. The Search for a Job for Ms. Lewinsky
Ms. Lewinsky had been searching for a highly paid job in
New York since the previous July. She had not had much success
despite President Clinton's promise to help. In early November,
Ms. Currie arranged a meeting with Mr. Jordan who was supposed
to help.
On November 5, Ms. Lewinsky met for 20 minutes with Mr.
Jordan. Lewinsky 8/6/98 GJT at 104. No action followed, no job
interviews were arranged, and Ms. Lewinsky had no further
contacts with Mr. Jordan at that time. Mr. Jordan made no
effort to find a job for Ms. Lewinsky. Indeed, it was so
unimportant to him that he testified that he ``had no
recollection of an early November meeting'' and that finding a
job for Ms. Lewinsky was not a priority. Jordan 3/3/98 GJT at
50, 5/5/98 GJT at 76. Nothing happened during the month of
November because Mr. Jordan was either gone or would not return
Ms. Lewinsky's calls. Lewinsky 8/6/98 GJT at 105-06.
During the December 6 meeting with President Clinton, Ms.
Lewinsky mentioned that she had not been able to reach Mr.
Jordan and that it did not seem he had done anything to help
her. Clinton 8/17/98 GJT at 84. President Clinton responded by
stating, ``Oh, I'll talk to him. I'll get on it,'' or something
to that effect. Lewinsky 8/6/98 GJT at 116. There was still no
urgency to help Ms. Lewinsky. Mr. Jordan met President Clinton
the next day, December 7, but the meeting had nothing to do
with Ms. Lewinsky. Jordan 5/5/98 GJT at 83, 116.
The first activity calculated to help Ms. Lewinsky actually
get a job took place on December 11. Mr. Jordan met with Ms.
Lewinsky and gave her a list of contact names. The two also
discussed President Clinton. Lewinsky 8/6/98 GJT at 119-20. Mr.
Jordan remembered that meeting. Jordan 3/5/98 GJT at 41. Mr.
Jordan immediately placed calls to two prospective employers.
Jordan 3/3/98 GJT at 54, 62-63. Later in the afternoon, he even
called President Clinton to report on his job search efforts.
Jordan 3/3/98 GJT at 64-66. Suddenly, Mr. Jordan and President
Clinton were now very interested in helping Ms. Lewinsky find a
good job in New York. Jordan 5/5/98 GJT at 95.
Something happened that changed the priority assigned to
the job search. On the morning of December 11, 1997, Judge
Susan Webber Wright ordered President Clinton to provide
information regarding any state or federal employee with whom
he had, proposed, or sought sexual relations. To keep Ms.
Lewinsky satisfied was now of critical importance.
E. The Events of December 17, 1997--President Clinton Informs Ms.
Lewinsky that She is on the Witness List
On December 17, 1997, between 2:00 and 2:30 in the morning,
Monica Lewinsky's phone rang unexpectedly. It was President
Clinton. He said that he wanted to tell Ms. Lewinsky two
things. One was that Ms. Currie's brother had been killed in a
car accident. Second, he said that he ``had some more bad
news''--that he had seen the witness list for the Jones case
and Ms. Lewinsky's name was on it. Lewinsky 8/6/98 GJT at 123.
He told Ms. Lewinsky that seeing her name on the list ``broke
his heart.'' He then told her that ``if [she] were to be
subpoenaed, [she] should contact Betty and let Betty know that
[she] had received the subpoena.'' Lewinsky 8/6/98 GJT at 123.
Ms. Lewinsky asked what she should do if subpoenaed. President
Clinton responded: ``Well, maybe you can sign an affidavit.''
Lewinsky 8/6/98 GJT at 123. Both knew that the affidavit would
have to be false and misleading to avoid Ms. Lewinsky's having
to testify.
Then, the President made a pointed suggestion to Monica
Lewinsky, a suggestion that left little room for compromise. He
did not say specifically ``go in and lie.'' What he did say is
``you know, you can always say you were coming to see Betty or
that you were bringing me letters.''
To understand the significance of this statement, one must
recall the cover stories that President Clinton and Ms.
Lewinsky had previously agreed on to deceive those who
protected and worked with the President.
Ms. Lewinsky was to say that she was simply delivering
papers when she visited President Clinton. When she saw him,
she would say: ``Oh, gee, here are your letters,'' and he would
answer, ``okay that's good.'' After Ms. Lewinsky left
employment at the White House, she was to return to the Oval
Office under the guise of visiting Betty Currie, not President
Clinton. Moreover, Ms. Lewinsky promised him that she would
always deny the sexual relationship and always protect him. The
President would respond ``that's good'' or similar language of
encouragement.
When President Clinton called Ms. Lewinsky to tell her she
was on the witness list, he made sure to remind her of those
prior cover stories. Ms. Lewinsky testified that when he
brought up the misleading story, she understood that the two
would continue their pre-existing pattern of deception.
President Clinton had no intention of making his sexual
relationship with Ms. Lewinsky a public affair. He would use
lies, deceit, and deception to ensure that the truth would not
be known.
When the President was asked by the grand jury whether he
remembered calling Monica Lewinsky at 2:00 a.m., he responded:
``No sir, I don't. But it would--it is quite possible that that
happened . . .'' Clinton 8/17/98 GJT at 116. When he was asked
whether he encouraged Ms. Lewinsky to continue the cover
stories of ``coming to see Betty'' or ``bringing the letters,''
he answered: ``I don't remember exactly what I told her that
night.'' Clinton 8/17/98 GJT at 117.
Six days earlier, he had become aware that Ms. Jones's
lawyers were now able to inquire about other women. Ms.
Lewinsky could file a false affidavit, but it might not work.
It was absolutely essential that both parties tell the same
story. He knew that he would lie if asked about Ms. Lewinsky;
and he wanted to make certain that she would lie also.
But President Clinton had an additional problem. It was not
enough that he and Ms. Lewinsky simply deny the relationship.
The evidence was accumulating. And the evidence was driving the
President to reevaluate his defense. By this time, the evidence
was establishing, through records and eyewitness accounts, that
President Clinton and Ms. Lewinsky were spending a significant
amount of time together in the Oval Office complex. The
unassailable facts were forcing President Clinton to
acknowledge the relationship. But at this point, he still had
the opportunity to establish an explanation for their meetings
that did not reveal the sexual relationship. He still had this
opportunity because his DNA had not yet been identified on Ms.
Lewinsky's blue dress. For that reason, President Clinton
needed Ms. Lewinsky to go along with the cover story to provide
an innocent explanation for their frequent meetings. And that
innocent explanation came in the form of ``document
deliveries'' and ``friendly chats with Betty Currie.''
When the President was deposed on January 17, 1998, he used
the exact same cover stories that Ms. Lewinsky had used. In
doing so, he maintained consistency with any future Lewinsky
testimony while also maintaining his defense in the Jones
lawsuit. In his deposition, he was asked whether he was ever
alone with Ms. Lewinsky. He responded: ``I don't recall . . .
She--it seems to me she brought things to me once or twice on
the weekends. In that case, whatever time she would be in
there, drop it off, exchange a few words and go, she was
there.'' Clinton 1/17/98 Dep. at 52-53 (emphasis added).
Additionally, whenever questions were posed regarding Ms.
Lewinsky's frequent visits to the Oval Office, President
Clinton never hesitated to bring Betty Currie's name into his
answers:
A. And my recollection is that on a couple of
occasions after [the pizza party meeting], she was
there [in the Oval Office] but my secretary, Betty
Currie, was there with her.
Clinton 1/17/98 Dep. at 58.
Q. When was the last time you spoke with Monica
Lewinsky?
A. I'm trying to remember. Probably sometime before
Christmas. She came by to see Betty sometime before
Christmas. And she was there talking to her, and I
stuck my head out, said hello to her.
Clinton 1/17/98 Dep. at 68. Or in another example:
Q. Mr. President, before the break, we were talking
about Monica Lewinsky. At any time were you and Monica
Lewinsky together alone in the Oval Office?
A. I don't recall, but as I said, when she worked at
the legislative affairs office, they always had
somebody there on the weekends. I typically worked some
on the weekends. Sometimes they'd bring me things on
the weekends. She--it seems to me she brought things to
me once or twice on the weekends. In that case,
whatever time she would be in there, drop it off,
exchange a few words and go, she was there. I don't
have any specific recollections of what the issues
were, what was going on, but when the Congress is
there, we're working all the time, and typically I
would do some work on one of the days of the weekends
in the afternoon.
Q. So I understand, your testimony is that it was
possible, then, that you were alone with her, but you
have no specific recollection of that ever happening?
A. Yes, that's correct. It's possible that she, in,
while she was working there, brought something to me
and that at the time she brought it to me, she was the
only person there. That's possible.
Q. At any time were you and Monica Lewinsky alone in
the hallway between the Oval Office and this kitchen
area?
A. I don't believe so, unless we were walking back to
the back dining room with the pizza. I just, I don't
remember. I don't believe we were alone in the hallway,
no.
Q. At any time have you and Monica Lewinsky ever been
alone together in any room in the White House?
A. I think I testified to that earlier. I think that
there is a, it is--I have no specific recollection, but
it seems to me that she was on duty on a couple of
occasions working for the legislative affairs office
and brought me some things to sign, something on the
weekend. That's--I have a general memory of that.
Q. Do you remember anything that was said in any of
those meetings?
A. No. You know, we just have conversation, I don't
remember.
Clinton 1/17/98 Dep. at 52-53, 58-59.
F. The Events of December 19, 1997--Ms. Lewinsky Receives a Subpoena
President Clinton and Ms. Lewinsky realized their greatest
fears on December 19, 1997, when Ms. Lewinsky received a
subpoena to testify in a deposition on January 23, 1998 in the
Jones case. Lewinsky 8/6/98 GJT at 128. It also called for her
to produce gifts given to her by President Clinton, including a
hat pin. Extremely distraught, she immediately called Mr.
Jordan. Ms. Lewinsky testified that President Clinton
previously told her to call Ms. Currie if she were subpoenaed.
She called Mr. Jordan instead because Ms. Currie's brother
recently died, and Ms. Lewinsky did not want to bother her.
Lewinsky 8/6/98 GJT at 128-29.
Mr. Jordan invited Ms. Lewinsky to his office and she
arrived shortly before 5 p.m. She was still extremely
distraught. Sometime around this time, Mr. Jordan called
President Clinton and told him Ms. Lewinsky had been
subpoenaed. Jordan 5/5/98 GJT at 145. During the meeting with
Ms. Lewinsky, which Mr. Jordan characterized as ``disturbing,''
she talked about her infatuation with President Clinton. Jordan
3/3/98 GJT at 100, 150. Mr. Jordan also decided that he would
call a lawyer for her. Jordan 3/3/98 GJT at 161. That evening,
Mr. Jordan met with President Clinton and relayed his
conversation with Ms. Lewinsky. The details are important
because President Clinton, in his deposition, testified that he
did not recall that meeting.
Mr. Jordan told President Clinton again that Ms. Lewinsky
had been subpoenaed, that he was concerned about her
fascination with President Clinton, and that Ms. Lewinsky had
asked Mr. Jordan if he thought President Clinton would leave
the First Lady. He also asked President Clinton if he had
sexual relations with Ms. Lewinsky. Jordan 3/3/98 GJT at 169.
President Clinton was asked:
Q. Did anyone other than your attorneys ever tell you
that Monica Lewinsky had been served with a subpoena in
this case?
A. I don't think so.
Q. Did you ever talk with Monica Lewinsky about the
possibility that she might be asked to testify in this
case?
A. Bruce Lindsey, I think Bruce Lindsey told me that
she was, I think maybe that's the first person told me
she was. I want to be as accurate as I can.
Clinton 1/17/98 Dep. at 68-69.
In the grand jury, President Clinton first repeated his
denial that Mr. Jordan told him Ms. Lewinsky had been
subpoenaed. Clinton 8/17/98 GJT at 39. Then, when given more
specific facts, he admitted that he ``knows now'' that he spoke
with Mr. Jordan about the subpoena on the night of December 19,
but his ``memory is not clear.'' Clinton 8/17/98 GJT at 41-42.
In an attempt to explain away his false deposition testimony,
the President testified in the grand jury that he was trying to
remember who told him first. Clinton 8/17/98 GJT at 41. But
that was not the question. So his answer was again false and
misleading. When one considers the nature of the conversation
between President Clinton and Mr. Jordan, the suggestion that
President Clinton forgot it defies common sense.
G. The Events of December 28, 1997--Ms. Currie Retrieves the Gifts
December 28, 1997 is a crucial date because the evidence
shows that President Clinton made false and misleading
statements to the federal court, the federal grand jury and the
Congress of the United States about the events on that date. He
also continued his course of obstructing justice.
President Clinton testified that it was ``possible'' that
he invited Ms. Lewinsky to the White House for a visit on this
date. Clinton 8/17/98 GJT at 34. He admitted that he
``probably'' gave Ms. Lewinsky the most gifts he had ever given
her on that date and that he had given her gifts on other
occasions. Clinton 8/17/98 GJT at 35. Among the many gifts the
President gave Ms. Lewinsky on December 28 was a bear that he
said was a symbol of strength. Clinton 8/17/98 GJT at 176. Yet
on January 17, just three weeks later, the President forgot
that he had given any gifts to Monica:
Q. Well, have you ever given any gifts to Monica
Lewinsky?
A. I don't recall. Do you know what they were?
Q. A hat pin?
A. I don't, I don't remember. But I certainly could
have.
Clinton 1/17/98 Dep. at 75.
As an attorney, he knew that the law will not tolerate
someone who says ``I don't recall'' when that answer is
unreasonable under the circumstances. He also knew that, under
those circumstances, his answer in the deposition could not be
believed. When asked in the grand jury why he was unable to
remember, though he had given Ms. Lewinsky so many gifts only
three weeks before the deposition, the President gave a
contrived explanation:
A. I think what I meant there was I don't recall what
they were, not that I don't recall whether I had given
them.
Clinton 8/17/98 GJT at 51.
President Clinton adopted that same answer in Response No.
42 to the Committee's Requests for Admissions. He was not asked
in the deposition to identify the gifts. He was simply asked,
``Have you ever'' given gifts to Ms. Lewinsky. The law does not
allow a witness to insert ``unstated premises'' or mental
reservations into the question to make his answer technically
true, if factually false. The essence of lying is in deception,
not in words.
His false testimony with respect to gifts also extends to
whether Ms. Lewinsky gave him gifts. President Clinton was
asked in the deposition if Ms. Lewinsky ever gave him gifts.
Q. Has Monica Lewinsky ever given you any gifts?
A. Once or twice. I think she's given me a book or
two.
Clinton 1/17/98 Dep. at 76-77.
This is also false testimony. He answered this question in
his Response Number 43 to the Committee by saying that he
receives numerous gifts, and he did not focus on the precise
number. The law again does not support the President's
position. An answer that ``baldly understates a numerical
fact'' in ``response to a specific quantitative inquiry'' can
be deemed ``technically true'' but actually false. For example,
a witness is testifying falsely if he says he went to the store
five times when in fact he had gone fifty, even though
technically he had gone five times also. So too, when the
President answered once or twice in the face of evidence that
Ms. Lewinsky brought him 40 gifts, he was lying.
On December 28, one of the most blatant efforts to obstruct
justice and conceal evidence occurred. Ms. Lewinsky testified
that she discussed with President Clinton her having been
subpoenaed and the subpoena's calling for her to produce gifts.
She recalled telling him that the subpoena requested a hat pin
and that that caused her concern. Lewinsky 8/6/98 GJT at 151-
52. He told her that it ``bothered'' him, too. Lewinsky 8/20/98
GJT at 66. Ms. Lewinsky then suggested that she take the gifts
somewhere, or give them to someone, possibly Ms. Currie. The
President answered: ``I don't know'' or ``Let me think about
that.'' Lewinsky 8/6/98 GJT at 152- 53. Later that day, Ms.
Lewinsky got a call from Ms. Currie, who said: ``I understand
you have something to give me'' or ``the President said you
have something to give me.'' Lewinsky 8/6/98 GJT at 154-55. Ms.
Currie has an unclear memory about this incident, but says that
``the best she can remember,'' Ms. Lewinsky called her. Currie
5/6/98 GJT at 105. Key evidence shows that Ms. Currie's unclear
recollection is wrong. Ms. Lewinsky said that she thought Ms.
Currie called from her cell phone. Lewinsky 8/6/98 GJT at 154-
55. Ms. Currie's cell phone record corroborates Ms. Lewinsky
and proves conclusively that Ms. Currie called Ms. Lewinsky
from her cell phone several hours after she had left the White
House. The evidence strongly suggests that President Clinton
directed her to do so.
Ms. Currie's actions buttress that conclusion. There is no
evidence that she asked why Ms. Lewinsky would have called her
for this strange task. Rather, she simply took the gifts and
placed them under her bed without asking a single question.
Currie 1/27/98 GJT at 57-58, 5/6/98 GJT at 105-08, 114.
President Clinton stated in his Response to Requests for
Admissions No. 24 and 25 from this Committee that he was not
concerned about the gifts. In fact, he said that he recalled
telling Ms. Lewinsky that if the Jones lawyers request gifts,
she should turn them over. He testified that he is ``not sure''
if he knew the subpoena asked for gifts. Clinton 8/17/98 GJT at
42-43. There would be no reason for Ms. Lewinsky and President
Clinton to discuss turning over gifts to the Jones lawyers if
Ms. Lewinsky had not told him that the subpoena asked for
gifts.
On the other hand, knowing the subpoena requested gifts,
his giving Ms. Lewinsky more gifts on December 28 seems odd.
But Ms. Lewinsky's testimony reveals why he did so. She said
that she never questioned ``that we were ever going to do
anything but keep this private'' and that meant to take
``whatever appropriate steps needed to be taken'' to keep it
quiet. Lewinsky 8/6/98 GJT at 166. The only logical inference
is that the gifts--including the bear symbolizing strength--
were a tacit reminder to Ms. Lewinsky that they would deny the
relationship--even in the face of a federal subpoena.
Furthermore, President Clinton, at various times in his
deposition, seriously misrepresented the nature of his meeting
with Ms. Lewinsky on December 28. First, he was asked: ``Did
she tell you she had been served with a subpoena in this
case?'' He answered flatly: ``No. I don't know she had been.''
Clinton 1/17/98 Dep. at 68.
He was also asked if he ``ever talked to Monica Lewinsky
about the possibility of her testifying.'' ``I'm not sure . .
.,'' he said. He then added that he may have joked to her that
the Jones lawyers might subpoena every woman he had ever spoken
to, and that ``I don't think we ever had more of a conversation
than that about it. . . .'' Clinton 1/17/98 Dep. at 70. Not
only does Ms. Lewinsky directly contradict this testimony, but
President Clinton also directly contradicted himself before the
grand jury. Speaking of his December 28, 1997 meeting, he said
that he ``knew by then, of course, that she had gotten a
subpoena'' and that they had a ``conversation about the
possibility of her testifying.'' Clinton 8/17/98 GJT at 35-36.
He had this conversation about her testimony only three weeks
before his deposition. Again, his version is not reasonable.
H. The Events of January 5-9, 1997--Ms. Lewinsky Signs the False
Affidavit and Gets the Job
President Clinton knew that Monica Lewinsky was going to
sign a false affidavit. He was so certain of the content that
when she asked if he wanted to see it, he told her no, that he
had seen fifteen of them. Lewinsky 8/2/98 302 at 3. He got his
information in part from his attorneys and in part from
discussions with Ms. Lewinsky and Mr. Jordan about the content
of the affidavit. Besides, he had suggested the affidavit
himself and he trusted Mr. Jordan to be certain the mission was
accomplished.
In the afternoon of January 5, 1998, Ms. Lewinsky met with
her lawyer, Mr. Frank Carter, to discuss the affidavit.
Lewinsky 8/6/98 GJT at 192. Mr. Carter asked her some hard
questions about how she got her job. Lewinsky 8/6/98 GJT at
195. After the meeting, she called Ms. Currie, and said that
she wanted to speak to President Clinton before she signed
anything. Lewinsky 8/6/98 GJT at 195. Ms. Lewinsky and
President Clinton discussed the issue of how she would answer
under oath if asked about how she got her job at the Pentagon.
Lewinsky 8/6/98 GJT at 197. He told her: ``Well, you could
always say that the people in Legislative Affairs got it for
you or helped you get it.'' Lewinsky 8/6/98 GJT at 197. That
was another lie.
Mr. Jordan also kept President Clinton advised as to the
contents of the affidavit. Jordan 5/5/98 GJT at 224. On January
6, 1998, Ms. Lewinsky picked up a draft of the affidavit from
Mr. Carter's office. Lewinsky 8/6/98 GJT at 199. She delivered
a copy to Mr. Jordan's office because she wanted Mr. Jordan to
look at the affidavit in the belief that if he approved,
President Clinton would also. Lewinsky 8/6/98 GJT at 194-95.
Ms. Lewinsky and Mr. Jordan conferred about the contents and
agreed to delete a paragraph Mr. Carter inserted which might
open a line of questions concerning whether she had been alone
with President Clinton. Lewinsky 8/6/98 GJT at 200. By
contrast, Mr. Jordan said he had nothing to do with the details
of the affidavit. Jordan 3/5/98 GJT at 12. He admits, though,
that he spoke with President Clinton after conferring with Ms.
Lewinsky about the changes made to her affidavit. Jordan 5/5/98
GJT at 218.
The next day, January 7, Monica Lewinsky signed the false
affidavit. Lewinsky 8/6/98 GJT at 204-05. She showed the
executed copy to Mr. Jordan that same day. Jordan 5/5/98 GJT at
222. She did this so that Mr. Jordan could report to President
Clinton that it had been signed and another mission had been
accomplished. Jordan 3/5/98 GJT at 26.
On January 8, 1998, Ms. Lewinsky had an interview arranged
by Mr. Jordan with MacAndrews and Forbes in New York. Lewinsky
8/6/98 GJT at 206. The interview went poorly. Afterwards, Ms.
Lewinsky called Mr. Jordan and informed him. Lewinsky 8/6/98
GJT at 206. Mr. Jordan, who had done nothing from early
November to mid December, then called the chief executive
officer of MacAndrews and Forbes, Ron Perelman, to ``make
things happen, if they could happen.'' Jordan 5/5/98 GJT at
231. Mr. Jordan called Ms. Lewinsky back and told her not to
worry. Lewinsky 8/6/98 GJT at 208-09. That evening, MacAndrews
and Forbes called Ms. Lewinsky and told that she would be given
more interviews the next morning. Lewinsky 8/6/98 GJT at 209.
The next morning, Ms. Lewinsky received her reward for
signing the false affidavit. After a series of interviews with
MacAndrews and Forbes personnel, she was informally offered a
job. Lewinsky 8/6/98 GJT at 210. When Ms. Lewinsky called Mr.
Jordan to tell him, he passed the good news on to Ms. Currie--
Tell the President, ``Mission Accomplished.'' Jordan 5/28/98
GJT at 39. Later, Mr. Jordan called President Clinton and told
him personally. Jordan 5/28/98 GJT at 41.
After months of looking for a job--since July according to
the President's lawyers--Mr. Jordan makes the call to a CEO the
day after the false affidavit is signed. Mr. Perelman testified
that Mr. Jordan had never called him before about a job
recommendation. Perelman 4/23/98 Dep. at 11. Mr. Jordan on the
other hand, said that he called Mr. Perelman to recommend for
hiring: (1) former Mayor Dinkins of New York; (2) a very
talented attorney from his law firm, Akin, Gump; (3) a Harvard
business school graduate; and (4) Ms. Lewinsky. Jordan 3/5/98
GJT at 58-59. Even if Mr. Perelman's testimony is mistaken, Ms.
Lewinsky does not have qualifications that would merit Mr.
Jordan's direct recommendation to a CEO of a Fortune 500
company.
Mr. Jordan knew that the people with whom Ms. Lewinsky
worked at the White House did not like her and that she did not
like her Pentagon job. Jordan 3/3/98 GJT at 43-44, 59. Mr.
Jordan was asked if at ``any point during this process you
wondered about her qualifications for employment?'' He
answered: ``No, because that was not my judgment to make.''
Jordan 3/3/98 GJT at 44. Yet when he called Mr. Perelman the
day after she signed the affidavit, he referred to Monica as a
bright young girl who is ``terrific.'' Perelman 4/23/98 Dep. at
10. Mr. Jordan said that she had been hounding him for a job
and voicing unrealistic expectations concerning positions and
salary. Jordan 3/5/98 GJT at 37-38. Moreover, she narrated a
disturbing story about President Clinton leaving the First Lady
and how the President was not spending enough time with her.
Yet, none of that gave Mr. Jordan pause in making the
recommendation. Jordan 3/3/98 GJT at 156-57. People like Mr.
Jordan do not call CEOs for marginal employees unless there is
a compelling reason. The compelling reason was that President
Clinton told him this was a top priority, especially after Ms.
Lewinsky received a subpoena.
I. The Filing of the False Affidavit
Ms. Lewinsky's false affidavit was important to President
Clinton's deposition. It enabled him, through his attorneys, to
assert at his January 17, 1998 deposition that `` . . . there
is absolutely no sex of any kind in any manner, shape or form
with President Clinton. . . .'' Clinton 1/17/98 Dep. at 54.
When his own attorney questioned him in the deposition, the
President stated specifically that the now famous paragraph 8
of Ms. Lewinsky's affidavit was ``absolutely true.'' Clinton 1/
17/98 Dep. at 204. President Clinton later affirmed the truth
of that statement when testifying before the grand jury.
Clinton 8/17/98 GJT at 20-21. Paragraph 8 of Ms. Lewinsky's
affidavit states:
I have never had a sexual relationship with the
President, he did not propose that we have a sexual
relationship, he did not offer me employment or other
benefits in exchange for a sexual relationship, he did
not deny me employment or other benefits for rejecting
a sexual relationship.
Appendices at 1235-36.
Ms. Lewinsky reviewed the draft affidavit on January 6, and
signed it on January 7 after deleting a reference to being
alone with President Clinton. She showed a copy of the signed
affidavit to Mr. Jordan who called President Clinton and told
him that she signed it. Jordan 3/5/98 GJT at 24-26, 5/5/98 GJT
at 222.
Getting the affidavit signed was only half the battle. To
have its full effect, it had to be filed with the Court and
provided to President Clinton's attorneys in time for his
deposition on January 17. On January 14, the President's
lawyers called Mr. Carter and left a message, presumably to
find out if he had filed the affidavit with the Court. Carter
6/18/98 GJT at 123. On January 15, President Clinton's
attorneys called Mr. Carter twice. When they finally reached
him, they requested a copy of the affidavit, and asked him,
``Are we still on time?'' Carter 6/18/98 GJT at 123. Mr. Carter
faxed a copy on January 15. Carter 6/18/98 GJT at 123.
President Clinton's counsel knew of its contents and used it
powerfully in the deposition.
Mr. Carter called the Court in Arkansas twice on January 15
to ensure that the affidavit could be filed on Saturday,
January 17. Carter 6/18/98 GJT at 124-25. He finished the
Motion to Quash Ms. Lewinsky's deposition in the early morning
hours of January 16, and mailed it to the Court with the false
affidavit attached for Saturday delivery. Carter 6/18/98 GJT at
134. President Clinton's lawyers called him again on January 16
telling him, ``You'll know what it's about.'' Carter 6/18/98
GJT at 135. President Clinton needed that affidavit to be filed
with the Court to support his plans to mislead Ms. Jones's
attorneys in the deposition.
On January 15, Michael Isikoff, a Newsweek reporter, called
Ms. Currie and asked her whether Ms. Lewinsky had been sending
gifts to her by courier. Currie 5/6/98 GJT at 123; Lewinsky 8/
6/98 GJT at 228. Ms. Currie then called Ms. Lewinsky and told
her about it. Lewinsky 8/6/98 GJT at 228-29. President Clinton
was out of town. Later, Ms. Currie called Ms. Lewinsky back and
asked for a ride to Mr. Jordan's office. Lewinsky 8/6/98 GJT at
229; Currie 5/6/98 GJT at 130-31. Mr. Jordan advised her to
speak with White House Deputy Counsel Bruce Lindsey and White
House Press Secretary Mike McCurry. Jordan 3/5/98 GJT at 71.
Ms. Currie testified that she spoke immediately to Mr. Lindsey
about Mr. Isikoff's call. Currie 5/6/98 GJT at 127.
J. The Events of January 17, 1998--President Clinton and Mr. Bennett at
the Deposition
President Clinton also provided false and misleading
testimony in the grand jury when he was asked about his
attorney, Robert Bennett's representation to Judge Wright, the
judge in the Jones case, that President Clinton is ``fully
aware'' that Ms. Lewinsky filed an affidavit saying that
``there is absolutely no sex of any kind in any manner, shape
or form, with President Clinton. . . .'' Clinton 1/17/98 Dep.
at 54. In the grand jury, President Clinton was asked about his
lawyer's representation in his presence and whether he felt
obligated to inform Judge Wright of the true state of affairs.
President Clinton answered that he was ``not even sure I paid
much attention to what [Mr. Bennett] was saying.'' Clinton 8/
17/98 GJT at 24. When pressed further, he said that he did not
believe he ``even focused on what Mr. Bennett said in the exact
words he did until I started reading this transcript carefully
for this hearing. That moment, the whole argument just passed
me by.'' Clinton 8/17/98 GJT at 29.
This last statement by President Clinton is critical.
First, he had planned his answer to the grand jurors. He spent
literally days with his attorney going over that deposition in
detail and crafting answers in his mind that would not be
obviously false. Second, he knew that he could only avoid an
admission that he allowed a false affidavit to be filed by
convincing the grand jury that he had not been paying
attention. The videotape of the deposition shows clearly that
President Clinton was paying close attention and that he
followed his lawyer's argument.
President Clinton had every reason to pay attention. Mr.
Bennett was talking about Ms. Lewinsky, at the time the most
dangerous person in his life. If the false affidavit worked and
Ms. Jones's lawyers could not question him about her, the
Lewinsky problem was solved. President Clinton was vitally
interested in what Mr. Bennett was saying. Nonetheless, when he
was asked in the grand jury whether Mr. Bennett's statement was
false, he still was unable to tell the truth--even before a
federal grand jury. He answered with the now famous sentence,
``It depends on what the meaning of the word ``is'' is.''
Clinton 8/17/98 GJT at 58.
But President Clinton reinforced Ms. Lewinsky's lie. Mr.
Bennett read to him the paragraph in Ms. Lewinsky's affidavit
in which she denied a sexual relationship with President
Clinton:
Q. In paragraph eight of her affidavit, she says
this, ``I have never had a sexual relationship with the
President, he did not propose that we have a sexual
relationship, he did not offer me employment or other
benefits in exchange for a sexual relationship, he did
not deny me employment or other benefits for rejecting
a sexual relationship.'' Is that a true and accurate
statement as far as you know it?
A. That is absolutely true.
Clinton 1/17/98 Dep. at 204. When asked about this in the grand
jury and when questioned about it by this Committee, the
President said that if Ms. Lewinsky believed it to be true,
then it was a true statement. Clinton 8/17/98 GJT at 21.
First, Ms. Lewinsky admitted to the grand jury that the
paragraph was false. Lewinsky 8/6/98 GJT at 204. Second,
President Clinton was not asked about Ms. Lewinsky's belief.
Rather, he was asked quite clearly and directly by his own
lawyer whether the statement was true. His answer was
unequivocally, yes. That statement is false.
Lastly, President Clinton asserts that according to his
reading of the definition of ``sexual relations'' given to him
at the deposition, he did not have sexual relations with Ms.
Lewinsky. His reading of the definition was an afterthought
conceived while preparing for his grand jury testimony. His
explanation to the grand jury, then, was also false and
misleading.
Apart from that defined term, President Clinton does not
explain his denial of an affair or a sexual affair--he cannot.
Neither can he avoid his unequivocal denial of sexual relations
in the answers to interrogatories in the Jones case--answered
before the definition of sexual relations used in the
deposition had been developed.
Q. Did you have an extramarital sexual affair with
Monica Lewinsky?
A. No.
Q. If she told someone that she had a sexual affair
with you beginning in November of 1995, would that be a
lie?
A. It's certainly not the truth. It would not be the
truth.
Q. I think I used the term ``sexual affair.'' And so
the record is completely clear, have you ever had
sexual relations with Monica Lewinsky, as that term is
defined in Deposition Exhibit 1, as modified by the
Court?
Mr. Bennett. I object because I don't know that he
can remember----
Judge Wright. Well, it's real short. He can--I will
permit the question and you may show the witness
definition number one.
A. I have never had sexual relations with Monica
Lewinsky. I've never had an affair with her.
Clinton 1/17/98 Dep. at 78.
K. The Events of Late January, 1998--Deposition Aftermath
By the time President Clinton concluded his deposition, he
knew that someone was talking about his relationship with Ms.
Lewinsky. He also knew that the only person who could be
talking was Ms. Lewinsky herself. The cover story that he and
Ms. Lewinsky created and that he used during the deposition was
now in jeopardy. He needed not only to contact Ms. Lewinsky,
but also to obtain corroboration from his trusted secretary,
Ms. Currie. At around 7 p.m. on the night of the deposition,
the President called Ms. Currie and asked that she come in the
following day, a Sunday. Currie 7/22/98 GJT at 154-55. Ms.
Currie could not recall the President ever before calling her
that late at home on a Saturday night. Currie 1/27/98 GJT at
69.
In the early morning hours of January 18, 1998--i.e. the
night of the deposition, President Clinton learned about the
Drudge Report mentioning Ms. Lewinsky released earlier that
day. Clinton 8/17/98 GJT at 142-43. Between 11:49 a.m. and 2:55
p.m., Mr. Jordan and President Clinton had three phone calls.
At about 5 p.m., Ms. Currie met with President Clinton. Currie
1/27/98 GJT at 67. He told her that he had just been deposed
and that the attorneys asked several questions about Ms.
Lewinsky. Currie 1/27/98 GJT at 69-70. This, incidentally,
violated Judge Wright's gag order prohibiting any discussions
about the deposition testimony. He then made a series of
statements to Ms. Currie:
(1) I was never really alone with Monica, right?
(2) You were always there when Monica was there,
right?
(3) Monica came on to me, and I never touched her,
right?
(4) You could see and hear everything, right?
(5) She wanted to have sex with me, and I cannot do
that.
Currie 1/27/98 GJT at 70-75, 7/22/98 GJT at 6-7.
During Betty Currie's grand jury testimony, she was asked
whether she believed that the President wished her to agree
with the statement:
Q. Would it be fair to say, then--based on the way he
stated [these five points] and the demeanor that he was
using at the time that he stated it to you--that he
wished you to agree with that statement?
A. I can't speak for him, but----
Q. How did you take it? Because you told us at these
[previous] meetings in the last several days that that
is how you took it.
A. (Nodding)
Q. And you're nodding your head, ``yes'', is that
correct?
A. That's correct.
Q. Okay, with regard to the statement that the
President made to you, ``You remember I was never
really alone with Monica, right, was that also a
statement that, as far as you took, that he wished you
to agree with that?
A. Correct.
Currie 1/27/98 GJT at 74.
In the grand jury, President Clinton was questioned about
his intentions when he made those five statements to Ms. Currie
in his office on that Sunday afternoon. He stated:
And what I wanted to establish was that Betty was there at
all other times in the complex, and I wanted to know what
Betty's memory was about what she heard, what she could hear.
And what I did not know was--I did not know that. And I was
trying to figure out in a hurry because I knew something was
up.
* * * * * * *
So, I was not trying to get Betty Currie to say something
that was untruthful. I was trying to get as much information as
quickly as I could.
* * * * * * *
. . . I thought we were going to be deluged by the press
comments. And I was trying to refresh my memory about what the
facts were.
Clinton 8/17/98 GJT at 54, 56, 131. Though Ms. Currie would
later intimate that she did not necessarily feel pressured by
President Clinton, she did state that she felt he was seeking
her agreement (or disagreement) with those statements. Currie
7/22/98 GJT at 27.
Logic tells us that his plea that he was just trying to
refresh his memory is contrived and false. First, consider his
options after he left his deposition:
(1) He could abide by Judge Wright's order to remain
silent and not divulge any details of his deposition;
(2) He could defy Judge Wright's order, and call Ms.
Currie on the phone and ask her open ended questions
(i.e., ``What do you remember about . . .?''); or
(3) He could call Ms. Currie and arrange a Sunday
afternoon meeting--a time when the fewest distractions
exist and the presence of White House staff is minimal.
He chose the third option.
He made sure that this was a face-to-face meeting--not a
telephone call. He made sure that no one else was present when
he spoke to her. He made sure that he had the meeting in his
office, an area where he was comfortable and could utilize its
power and prestige to influence her potential testimony.
When Ms. Currie testified before the grand jury, she could
not recall whether she had another one-on-one discussion with
President Clinton on Tuesday, January 20 or Wednesday, January
21. But she did state that on one of those days, he summoned
her back to his office. At that time, he recapped their Sunday
afternoon discussion in the Oval Office. When he spoke to her
in this second meeting, he spoke in the same tone and demeanor
that he used in his January 18 Sunday session. Currie 1/27/98
GJT at 70-75, 7/22/98 GJT at 6-7. Ms. Currie stated that the
President may have mentioned that she might be asked about
Monica Lewinsky. Currie 1/24/98 302 at 8.
During these meetings, President Clinton made short, clear,
understandable, declarative statements telling Ms. Currie what
his testimony was. He was not interested in what she knew.
Rather, he did not want his personal secretary to contradict
him. The only way to ensure that was by telling her what to
say, not asking her what she remembered. One does not refresh
someone else's memory by telling that person what he or she
remembers. One certainly does not make declarative statements
to someone regarding factual scenarios of which the listener
was unaware.
Ms. Currie could not possibly have any personal knowledge
of the facts that the President was asking. Ms. Currie could
not know if they were ever alone. If they were, Ms. Currie was
not there. She could not know that the President never touched
Monica. President Clinton was not trying to refresh his
recollection--instead, it was witness tampering pure and
simple.
President Clinton essentially admitted to making these
statements when he knew they were not true. Consequently, he
painted himself into a legal corner. Understanding the
seriousness of the President ``coaching'' Ms. Currie, his
attorneys have argued that those statements to her could not
constitute obstruction because she had not been subpoenaed, and
the President did not know that she was a potential witness at
the time. This argument is refuted by both the law and the
facts.
The Eighth Circuit rejected this argument stating:
[A] person may be convicted of obstructing justice if
he urges or persuades a prospective witness to give
false testimony. Neither must the target be scheduled
to testify at the time of the offense, nor must he or
she actually give testimony at a later time.
United States v. Shannon, 836 F.2d 1125, 1128 (8th Cir.), cert.
denied, 486 U.S. 1058 (1988), citing, e.g., United States v.
Friedland, 660 F.2d 919, 931 (3d Cir. 1981), cert. denied, 456
U.S. 989 (1982). Indeed, under the witness tampering statute,
there need not even be a proceeding pending, 18 U.S.C.
Sec. 1512(e)(1). As discussed, President Clinton and Ms.
Lewinsky concocted a cover story that brought Ms. Currie into
the fray as a corroborating witness. True to this scheme,
President Clinton invoked Ms. Currie's name frequently as a
witness who could corroborate his false and misleading
testimony about the Lewinsky affair. For example, during his
deposition, when asked whether he was alone with Ms. Lewinsky,
he said that he was not alone with her or that Ms. Currie was
there with Ms. Lewinsky. Clinton 8/17/98 GJT at 58. When asked
about the last time he saw Ms. Lewinsky, which was December 28,
1997, he falsely testified that he only recalled that she was
there to see Ms. Currie. Clinton 1/17/98 Dep. at 70. He also
told the Jones lawyers to ``ask Betty'' whether Ms. Lewinsky
was alone with him or with Ms. Currie in the White House
between the hours of midnight and 6 a.m. Clinton 1/17/98 Dep.
at 64-66. Asked whether Ms. Lewinsky sent packages to him, he
stated that Ms. Currie handled packages for him. Clinton 1/17/
98 Dep. at 64. Asked whether he may have assisted in any way
with Ms. Lewinsky's job search, he stated that he thought Ms.
Currie suggested Mr. Jordan talk to Ms. Lewinsky, and that Ms.
Lewinsky asked Ms. Currie to ask someone to talk to Ambassador
Richardson about a job at the United Nations. Clinton 1/17/98
Dep. at 72-74.
Ms. Currie was a prospective witness, and President Clinton
clearly wanted her to be deposed, as his ``ask Betty''
testimony demonstrates. He claims that he called Ms. Currie
into work on a Sunday night only to find out what she knew. But
he knew the truth about his relationship with Ms. Lewinsky, and
if he had told the truth during his deposition the day before,
then he would have no reason to worry about what Ms. Currie
knew. More importantly, the President's demeanor, Ms. Currie's
reaction to his demeanor, and the suggested lies clearly prove
that the President was not merely interviewing Ms. Currie.
Rather, he was looking for corroboration for his false cover-
up, and that is why he coached her.
Soon after his Sunday meeting with Ms. Currie, at 5:12
p.m., the flurry of telephone calls began looking for Ms.
Lewinsky. Between 5:12 p.m. and 8:28 p.m., Ms. Currie paged Ms.
Lewinsky four times. At 11:02 p.m., President Clinton called
Ms. Currie at home to ask if she has reached Ms. Lewinsky.
Currie 7/22/98 GJT at 160.
The following morning, January 19, Ms. Currie continued to
work diligently for President Clinton. Between 7:02 a.m. and
8:41 a.m., she paged Ms. Lewinsky another five times. After the
8:41 a.m. page, Ms. Currie called President Clinton at 8:43
a.m. and said that she was unable to reach Ms. Lewinsky. Currie
8/22/98 GJT at 161-62. One minute later, at 8:44 a.m., she
again paged Ms. Lewinsky. This time, Ms. Currie's page stated:
``Family Emergency,'' apparently in an attempt to alarm Ms.
Lewinsky into calling back. That may have been President
Clinton's idea because Ms. Currie had just spoken with him. He
was quite concerned because he called Ms. Currie only six
minutes later, at 8:50 a.m. Immediately thereafter, at 8:51
a.m., Ms. Currie tries a different tactic sending the message:
``Good news.'' Ms. Currie said that she was trying to encourage
Ms. Lewinsky to call, but there was no sense of ``urgency.''
Currie 7/22/98 GJT at 165. Ms. Currie's recollection of why she
was calling was again unclear. She said at one point that she
believes President Clinton asked her to call Ms. Lewinsky, and
she thought she was calling just to tell her that her name came
up in the deposition. Currie 7/22/98 GJT at 162. Ms. Lewinsky
had been subpoenaed. It was no surprise that her name came up
in the deposition. There was another and more important reason
the President needed to get in touch with her.
At 8:56 a.m., President Clinton telephoned Mr. Jordan who
then joined in the activity. Over a course of twenty-four
minutes, from 10:29 to 10:53 a.m., Mr. Jordan called the White
House three times, paged Ms. Lewinsky, and called Ms.
Lewinsky's attorney, Frank Carter. Between 10:53 a.m. and 4:54
p.m., there are continued calls between Mr. Jordan, Ms.
Lewinsky's attorney, and individuals at the White House.
Later that afternoon, matters deteriorated for President
Clinton. At 4:54 p.m., Mr. Jordan called Mr. Carter. Mr. Carter
informed Mr. Jordan that he had been told he no longer
represented Ms. Lewinsky. Jordan 3/5/98 GJT at 141. Mr. Jordan
then made feverish attempts to reach President Clinton or
someone at the White House to tell them the bad news, as
represented by the six calls between 4:58 p.m. and 5:22 p.m.
Mr. Jordan said that he tried to relay this information to the
White House because ``[t]he President asked me to get Monica
Lewinsky a job,'' and he thought it was ``information that they
ought to have.'' Jordan 6/9/98 GJT at 45-46. Mr. Jordan then
called Mr. Carter back at 5:14 p.m. to ``go over'' what they
had already talked about. Jordan 3/5/98 GJT at 146. Mr. Jordan
finally reached the President at 5:56 p.m., and tells him that
Mr. Carter had been fired. Jordan 6/9/98 GJT at 54.
This activity occurred because it was important for the
President of the United States to find Monica Lewinsky to learn
to whom she was talking. Ms. Currie was in charge of contacting
Ms. Lewinsky. President Clinton had just completed a deposition
in which he provided false and misleading testimony about his
relationship with Ms. Lewinsky. She was a co-conspirator in
hiding this relationship from the Jones attorneys, and he was
losing control over her. He never got complete control over her
again.
But President Clinton's efforts to obtain false
corroboration did not end there. On Wednesday, January 21,
1998, the Washington Post published a story entitled ``Clinton
Accused of Urging Aide to Lie; Starr Probes Whether President
Told Woman to Deny Alleged Affair to Jones' Lawyers.'' The
White House learned the substance of the Post story on the
evening of January 20, 1998.
After President Clinton learned of that story, he made a
series of telephone calls. At 12:08 a.m. he called his
attorney, Mr. Bennett, and they had a conversation. The next
morning, Mr. Bennett was quoted in the Post stating: ``The
President adamantly denies he ever had a relationship with Ms.
Lewinsky and she has confirmed the truth of that.'' He added,
``This story seems ridiculous and I frankly smell a rat.''
After that conversation, President Clinton had a half hour
conversation with White House Deputy Counsel Bruce Lindsey. At
1:16 a.m., he called Ms. Currie and spoke to her for 20
minutes. He then called Mr. Lindsey again. At 6:30 a.m. the
President called Mr. Jordan. After that, he again conversed
with Bruce Lindsey.
This flurry of activity was a prelude to the stories which
President Clinton would soon inflict on top White House aides
and advisors. On the morning of January 21, 1998, he met with
White House Chief of Staff, Erskine Bowles and his two
deputies, John Podesta and Sylvia Matthews. Mr. Bowles recalled
entering the President's office at 9:00 a.m. that morning. He
then recounts President Clinton's immediate words as he and two
others entered the Oval Office:
And he looked up at us and he said the same thing he
said to the American people. He said, ``I want you to
know I did not have sexual relationships with this
woman, Monica Lewinsky. I did not ask anybody to lie.
And when the facts came out, you'll understand.''
Bowles 4/2/98 GJT at 84. After he made that blanket denial, Mr.
Bowles responded:
I said, ``Mr. President, I don't know what the facts
are. I don't know if they're good, bad, or indifferent.
But whatever they are, you ought to get them out. And
you ought to get them out right now.''
Bowles 4/2/98 GJT at 84. When counsel asked whether President
Clinton responded to Bowles's suggestion that he tell the
truth, Mr. Bowles responded: ``I don't think he made any
response, but he didn't disagree with me.'' Bowles 4/2/98 GJT
at 84.
Deputy Chief of Staff John Podesta also recalled a meeting
with President Clinton on the morning of January 21, 1998. He
testified before the grand jury as to what occurred in the Oval
Office that morning:
A. And we started off meeting--we didn't--I don't
think we said anything. And I think the President
directed this specifically to Mr. Bowles. He said,
``Erskine, I want you to know that this story is not
true.''
Q. What else did he say?
A. He said that--that he had not had a sexual
relationship with her, and that he never asked anybody
to lie.
Podesta 6/16/98 GJT at 85.
Two days later on January 23, 1998, Mr. Podesta had another
discussion with the President:
I asked him how he was doing, and he said he was
working on this draft and he said to me that he never
had sex with her, and that--and that he never asked--
you know, he repeated the denial, but he was extremely
explicit in saying he never had sex with her.
Podesta 6/16/98 GJT at 92. Then Mr. Podesta testified as
follows:
Q. Okay. Not explicit, in the sense that he got more
specific than sex, than the word ``sex.''
A. Yes, he was more specific than that.
Q. Okay, share that with us.
A. Well, I think he said--he said that--there was
some spate. Of, you know, what sex acts were counted,
and he said that he had never had sex with her in any
way whatsoever----
Q. Okay.
A. That they had not had oral sex.
Podesta 6/16/98 GJT at 92.
Later in the day on January 21, 1998, President Clinton
called Sidney Blumenthal to his office. His lies became more
elaborate and pronounced when he had time to concoct his newest
line of defense. When the President spoke to Mr. Bowles and Mr.
Podesta, he simply denied the story. By the time he spoke to
Mr. Blumenthal, he had added three new angles to his defense
strategy: (1) he now portrays Ms. Lewinsky as the aggressor;
(2) he launches an attack on her reputation by portraying her
as a ``stalker''; and (3) he presents himself as the innocent
victim being attacked by the forces of evil.
Mr. Blumenthal recalled in his June 4, 1998 testimony:
And it was at this point that he gave his account of
what had happened to me and he said that Monica--and it
came very fast. He said, ``Monica Lewinsky came at me
and made a sexual demand on me.'' He rebuffed her. He
said, ``I've gone down that road before, I've caused
pain for a lot of people and I'm not going to do that
again.'' She threatened him. She said that she would
tell people they'd had an affair, that she was known as
the stalker among her peers, and that she hated it and
if she had an affair or said she had an affair then she
wouldn't be the stalker anymore.
Blumenthal 6/4/98 GJT at 49. Mr. Blumenthal said President
Clinton told him moments later:
And he said, ``I feel like a character in a novel. I
feel like somebody who is surrounded by an oppressive
force that is creating a lie about me and I can't get
the truth out. I feel like the character in the novel
Darkness at Noon.''
And I said to him, ``When this happened with Monica
Lewinsky, were you alone?'' He said, ``Well, I was
within eyesight or earshot of someone.''
Blumenthal 6/4/98 GJT at 50. At one point, Mr. Blumenthal is
asked by the grand jury to describe the President's manner and
demeanor during the exchange.
Q. In response to my question how you responded to
the President's story about a threat or discussion
about a threat from Ms. Lewinsky, you mentioned you
didn't recall specifically. Do you recall generally the
nature of your response to the President?
A. It was generally sympathetic to the President. And
I certainly believed his story. It was a very heartfelt
story, he was pouring out his heart, and I believed
him.
Blumenthal 6/25/98 GJT at 16-17.
President Clinton also implemented a win-at-all-costs
strategy. Former presidential advisor Dick Morris testified
that on January 21, 1998, he spoke to President Clinton and
they discussed the turbulent events of the day. President
Clinton again denied the accusations against him. After further
discussions, they decided to have an overnight poll taken to
determine if the American people would forgive the President
for adultery, perjury, and obstruction of justice. When Mr.
Morris received the results, he called the President:
And I said, ``They're just too shocked by this. It's
just too new, it's too raw.'' And I said, ``And the
problem is they're willing to forgive you for adultery,
but not for perjury or obstruction of justice or the
various other things.''
Morris 8/18/98 GJT at 28. Mr. Morris then recalls the following
exchange:
Morris: And I said, ``They're just not ready for
it.'' meaning the voters. President Clinton: Well, we
just have to win, then.
Morris 8/18/98 GJT at 30. President Clinton cannot recall this
statement.
L. The Events of August 17, 1998--The Grand Jury Testimony
On August 17, the last act of the tragedy took place. After
six invitations, President Clinton appeared before a grand jury
of his fellow citizens and took an oath to tell the truth. He
equivocated and engaged in legalistic fencing, but he also
lied. Actually, the entire testimony was calculated to mislead
and deceive the grand jury and eventually the American people.
On August 16, 1998, President Clinton's personal attorney,
David Kendall provided the following statement regarding his
testimony:
There is apparently an enormous amount of groundless
speculation about the President's testimony tomorrow.
The truth is the truth. Period. And that's how the
President will testify.
Kendall 8/16/98 Statement.
The untruthful tone, however, was set at the very
beginning. Judge Starr testified that in a grand jury a witness
can tell the truth, lie, or assert a legal privilege. President
Clinton was given a fourth choice. The President was permitted
to read a statement:
When I was alone with Ms. Lewinsky on certain
occasions in early 1996 and once in early 1997, I
engaged in conduct that was wrong. These encounters did
not consist of sexual intercourse. They did not
constitute sexual relations as I understood that term
to be defined at my January 17th deposition. But they
did involve inappropriate intimate contact.
These inappropriate encounters ended, at my
insistence, in early 1997. I also had occasional
telephone conversations with Ms. Lewinsky that included
inappropriate sexual banter.
I regret that what began as a friendship came to
include this conduct, and I will take full
responsibility for my actions.
While I will provide the grand jury whatever other
information I can, because of privacy considerations
affecting my family, myself, and others, and in an
effort to preserve the dignity of the office I hold,
this is all I will say about the specifics of these
particular matters.
I will try to answer, to the best of my ability,
other questions including questions about my
relationship with Ms. Lewinsky; questions about my
understanding of the term ``sexual relations,'' as I
understood it to be defined at my January 17th, 1998
deposition; and questions concerning alleged
subornation of perjury, obstruction of justice, and
intimidation of witnesses. That, Mr. Bittman, is my
statement.
Clinton 8/17/98 GJT at 8-10.
That statement itself is false in many particulars.
President Clinton claims that he engaged in wrongful conduct
with Ms. Lewinsky ``on certain occasions in early 1996 and once
in 1997.'' He does not mention 1995. There was a reason. On the
three ``occasions'' in 1995, Ms. Lewinsky was a twenty-one year
old intern. As for being alone on ``certain occasions,'' he was
alone with Ms. Lewinsky more than twenty times at least. The
President also told the jurors that he ``also had occasional
telephone conversations with Ms. Lewinsky that included sexual
banter.'' Actually, the two had at least fifty-five phone
conversations, many in the middle of the night and in seventeen
of these calls, Ms. Lewinsky and President Clinton engaged in
phone sex.
Again, President Clinton carefully crafted his statements
to give the appearance of being candid, when actually he
intended the opposite. In addition, throughout the testimony
whenever he was asked a specific question that could not be
answered directly without either admitting the truth or giving
an easily provable false answer, he said, ``I rely on my
statement.'' Nineteen times he relied on this false and
misleading statement; nineteen times, then, he repeated those
lies. For example:
Q. Getting back to the conversation you had with Mrs.
Currie on January 18th, you told her--if she testified
that you told her, Monica came on to me and I never
touched her, you did, in fact, of course, touch Ms.
Lewinsky, isn't that right, in a physically intimate
way?
A. Now, I've testified about that. And that's one of
those questions that I believe is answered by the
statement that I made.
Clinton 8/17/98 GJT at 138.
He also admitted to the grand jury that, after the
allegations were publicly reported, that he made ``misleading''
statements to particular aides whom he knew would likely be
called to testify before the Grand Jury:
Q. Do you recall denying any sexual relationship with
Monica Lewinsky to the following people: Harry
Thomasson, Erskine Bowles, Harold Ickes, Mr. Podesta,
Mr. Blumenthal, Mr. Jordan, Ms. Betty Currie? Do you
recall denying any sexual relationship with Monica
Lewinsky to those individuals?
A. I recall telling a number of those people that I
didn't have, either I didn't have an affair with Monica
Lewinsky or didn't have sex with her. And I believe,
sir, that--you'll have to ask them what they thought.
But I was using those terms in the normal way people
use them. You'll have to ask them what they thought I
was saying.
Q. If they testified that you denied sexual relations
or relationship with Monica Lewinsky, or if they told
us that you denied that, do you have any reason to
doubt them, in the days after the story broke; do you
have any reason to doubt them?
A. No.
Clinton 8/17/98 GJT at 104-05. President Clinton then was
specifically asked whether he knew that his aides were likely
to be called before the grand jury:
Q. It may have been misleading, sir, and you knew
though, after January 21st when the Post article broke
and said that Judge Starr was looking into this, you
knew that they might be witnesses. You knew that they
might be called into a grand jury, didn't you?
A. That's right. I think I was quite careful what I
said after that. I may have said something to all these
people to that effect, but I'll also--whenever anybody
asked me any details, I said, look, I don't want you to
be a witness or I turn you into a witness or give you
information that would get you in trouble. I just
wouldn't talk. I, by and large, didn't talk to people
about it.
Q. If all of these people--let's leave Mrs. Currie
for a minute. Vernon Jordan, Sid Blumenthal, John
Podesta, Harold Ickes, Erskine Bowles, Harry Thomasson,
after the story broke, after Judge Starr's involvement
was known on January 21st, have said that you denied a
sexual relationship with them. Are you denying that?
A. No.
Q. And you've told us that you----
A. I'm just telling you what I meant by it. I told
you what I meant by it when they started this
deposition.
Q. You've told us now that you were being careful,
but that it might have been misleading. Is that
correct?
A. It might have been . . . . So, what I was trying
to do was to give them something they could--that would
be true, even if misleading in the context of this
deposition, and keep them out of trouble, and let's
deal--and deal with what I thought was the almost
ludicrous suggestion that I had urged someone to lie or
tried to suborn perjury, in other words.
Clinton 8/17/98 GJT at 106-08.
As the President testified before the grand jury, he
maintained that he was being truthful with his aides:
Q. You don't remember denying any kind of sex in any
way, shape or form, and including oral sex, correct?
A. I remember that I issued a number of denials to
people that I thought needed to hear them, but I tried
to be careful and to be accurate, and I do not remember
what I said to John Podesta.
* * * * * * *
Q. Did you deny it to them or not, Mr. President?
A. Let me finish. So, what--I did not want to mislead
my friends, but I wanted to find language where I could
say that. I also, frankly, did not want to turn any of
them into witnesses, because I--and, sure enough, they
all became witnesses.
Q. Well, you knew they might be----
A. And so----
Q. Witnesses, didn't you?
A. And so I said to them things that were true about
this relationship. That I used--in the language I used,
I said, there's nothing going on between us. That was
true. I said, I have not had sex with her as I defined
it. That was true. And did I hope that I would never
have to be here on this day giving this testimony? Of
course.
But I also didn't want to do anything to complicate
this matter further. So, I said things that were true.
They may have been misleading, and if they were I have
to take responsibility for it, and I'm sorry.
Clinton 8/17/98 GJT at 100, 105-06. He stated that when he
spoke to his aides, he was careful with his wording. He stated
that he wanted his statement regarding ``sexual relations'' to
be literally true because he was only referring to intercourse.
However, John Podesta said that President Clinton denied
sex ``in any way whatsoever'' ``including oral sex.'' He told
Mr. Podesta, Mr. Bowles, Ms. Williams, and Harold Ickes that he
did not have a ``sexual relationship'' with that woman. Seven
days after the President's grand jury appearance, the White
House issued a document entitled, ``Talking Points January 24,
1998.'' This ``Talking Points'' document outlines proposed
questions that the President may be asked. It also outlines
suggested answers to those questions. The ``Talking Points''
purport to state the President's view of sexual relations and
his view of the relationship with Monica Lewinsky.
The ``Talking Points'' state in relevant part as follows:
Q. What acts does the President believe constitute a
sexual relationship?
A. I can't believe we're on national television
discussing this. I am not about to engage in an ``act-
by-act'' discussion of what constitutes a sexual
relationship.
Q. Well, for example, Ms. Lewinsky is on tape
indicating that the President does not believe oral sex
is adultery. Would oral sex, to the President,
constitute a sexual relationship?
A. Of course it would.
Based upon the foregoing, the President's own talking
points refute the President's ``literal truth'' argument.
M. Answers to the Committee's Requests for Admission
In an effort to avoid unnecessary work and to bring this
inquiry to an expeditious end, this Committee submitted to the
President eighty-one requests to admit or deny specific facts
relevant to this investigation. Although, for the most part,
the questions could have been answered with a simple ``admit''
or ``deny'', President Clinton chose to follow the pattern of
selective memory, reference to other testimony, blatant
untruths, artful distortions, outright lies and half truths he
had already used. When he did answer, he engaged in legalistic
hairsplitting in an attempt to skirt the truth and to deceive
this Committee.
Thus, on at least twenty-three questions, President Clinton
professed a lack of memory despite the testimony of several
witnesses that he has a remarkable memory. In at least fifteen
answers, he merely referred to ``White House Records.'' He also
referred to his own prior testimony and that of others. He
answered several of the requests by merely restating the same
deceptive answers that he gave to the grand jury.
These half-truths, legalistic parsings, and evasive and
misleading answers were calculated to obstruct the efforts of
this Committee. They have had the effect of seriously hampering
this Committee's ability to ascertain the truth. President
Clinton has, therefore, added obstruction of an inquiry by the
Legislative Branch to his obstructions of justice before the
Judicial Branch.
III. EXPLANATION OF ARTICLES
A. Article I--Perjury in the Grand Jury
On August 17, 1998, William Jefferson Clinton swore to tell
the truth, the whole truth, and nothing but the truth before a
federal grand jury of the United States. Contrary to that oath,
William Jefferson Clinton willfully provided perjurious, false
and misleading testimony to the grand jury concerning one or
more of the following: (1) the nature and details of his
relationship with a subordinate government employee; (2) prior
perjurious, false and misleading testimony he gave in a federal
civil rights action brought against him; (3) prior false and
misleading statements he allowed his attorney to make to a
Federal judge in that civil rights action; and (4) his corrupt
efforts to influence the testimony of witnesses and to impede
the discovery of evidence in that civil rights action.
1. The Committee concluded that, on August 17, 1998, the President
provided perjurious, false, and misleading testimony to a
Federal grand jury concerning the nature and details of his
relationship with a subordinate government employee
On August 17, 1998, the President gave perjurious, false,
and misleading testimony regarding his relationship with Monica
Lewinsky before a Federal grand jury. Such testimony includes
the following:
Q. Mr. President, were you physically intimate with Monica
Lewinsky?
A. Mr. Bittman, I think maybe I can save the--you and the
grand jurors a lot of time if I read a statement, which, which
I think will make it clear what the nature of my relationship
with Ms. Lewinsky was and how it related to the testimony I
gave, what I was trying to do in that testimony. And I think it
will perhaps make it possible for you to ask even more relevant
questions from your point of view. And, with your permission,
I'd like to read that statement.
Q. Absolutely. Please, Mr. President.
A. When I was alone with Ms. Lewinsky on certain occasions
in early 1996 and once in early 1997, I engaged in conduct that
was wrong. These encounters did not consist of sexual
intercourse. They did not constitute sexual relations as I
understood that term to be defined at my January 17th, 1998
deposition. But they did involve inappropriate intimate
contact.
These inappropriate encounters ended, at my insistence, in
early 1997. I also had occasional telephone conversations with
Ms. Lewinsky that included inappropriate sexual banter.
Grand Jury Testimony of President Clinton, 8/17/98, pp. 8-9, H.
Doc. 105-311, pp. 460-61.
The President referred or reverted to this perjurious,
false, and misleading statement many times throughout his grand
jury testimony. For examples, see p. 37, lines 23-25, p. 38,
lines 1-6; p. 101, lines 11-21; p. 109, lines 6-25, p. 110,
lines 7-13; p. 138, lines 16-23; p. 166, lines 23-25, p. 167,
lines 1-12.
This statement is misleading. The fact that it was prepared
beforehand reveals an intent to mislead. The purpose of the
statement was to avoid answering specific questions related to
the President's conduct with Ms. Lewinsky. This is evident from
the fact that the President reverted to his statement 19 times
in lieu of answering direct questions required by a grand jury
witness. He used a prepared statement in order to justify the
perjurious answers he gave at his deposition, which were
intended to affect the outcome of the Jones case. See Article
II analysis. The above quoted testimony reveals some direct
lies. For example, the sexual contact between the President and
Ms. Lewinsky was not limited to 1996 and 1997. It began in
1995, when Monica Lewinsky was a 21 year old intern. The
President and Ms. Lewinsky were not alone only on ``certain
occasions.'' They were alone at least 20 times, and had 11
sexual encounters. The ``occasional'' telephone conversations
that included ``sexual banter'' actually included 55 phone
conversations, during 17 of which they engaged in phone sex.
These direct lies, however, taken alone, do not constitute
the heart of the perjury committed by the President. Rather,
the fact that he provided to the grand jury a half-true,
incomplete and misleading statement as a true and complete
characterization of his conduct (as required by the oath), and
used that statement as a response to direct questions going to
the heart of the investigation into whether he committed
perjury and obstructed justice related to his deposition,
constitutes a premeditated effort to thwart the investigation
and to justify prior criminal wrongdoing.
The President also provided the following perjurious,
false, and misleading testimony regarding the nature and
details of his relationship with a subordinate employee:
Q. Did you understand the words in the first portion of the
exhibit, Mr. President, that is, ``For the purposes of this
deposition, a person engages in `sexual relations' when the
person knowingly engages in or causes''?
Did you understand, do you understand the words there in
that phrase?
A. Yes. My--I can tell you what my understanding of the
definition is, if you want me to----
Q. Sure.
A [continuing]. Do it. My understanding of this definition
is it covers contact by the person being deposed with the
enumerated areas, if the contact is done with an intent to
arouse or gratify. That's my understanding of the definition.
Q. What did you believe the definition to include and
exclude? What kinds of activities?
A. I thought the definition included any activity by the
person being deposed, where the person was the actor and came
into contact with those parts of the bodies with the purpose or
intent or gratification, and excluded any other activity.
Grand Jury Testimony of President Clinton, 8/17/98, pp. 14-15,
H. Doc. 105-311, pp. 466-67.
This statement is perjurious. At the deposition of the
President, his attorney Mr. Bennett, in characterizing the
affidavit of Monica Lewinsky in which she stated that she did
not have ``sexual relations'' with the President, stated that
``sexual relations'' in that affidavit meant ``there is no sex
of any kind in any manner, shape or form.'' The President would
have the grand jury, and now the House of Representatives
believe that the purposely broad definition of sexual
relations, meant to address the affidavit filed, and chosen by
the court in the Jones case, meant something different than the
same words in Ms. Lewinsky's affidavit and that it took into
account contorted and strained interpretations of words and
meanings. It is unrealistic to contemplate that the President,
at his deposition, honestly and without a desire to mislead,
gave the meaning to the definition of ``sexual relations'' that
he testified to before the grand jury.
During his deposition in the Jones case, President Clinton,
having knowledge of the false affidavit executed by Ms.
Lewinsky denying any relationship, asserted the same falsehood
contained in that affidavit which he encouraged her to file. He
denied having a ``sexual affair, a sexual relationship or
sexual relations'' with Monica Lewinsky. Deposition Testimony
of President in the Jones case, 1/17/98, pp. 78, 204. Thus, the
question of whether there was a sexual relationship between the
President and this subordinate employee became part of the OIC
investigation into whether the chief law enforcement officer of
the country committed perjury and obstructed justice,
undermining the rule of law in a civil rights sexual harassment
case.
The OIC proceeded to gather a substantial body of evidence
proving that the President did indeed subvert the judicial
system by lying under oath in his deposition and obstructing
justice. This evidence includes Ms. Lewinsky's consistent and
detailed testimony given under oath regarding 11 specific
sexual encounters with the President, confirmation of the
President's semen stain on Monica Lewinsky's dress, and the
testimony of Monica Lewinsky's friends, family members and
counselors to whom she made near contemporaneous statements
about the relationship. Ms. Lewinsky's memory and accounts were
further corroborated by her recollection of times and phone
calls which were shown to be correct with entrance logs and
phone records. (For a summary of testimony and citations to the
record, see the OIC Referral, pp. 134-40).
As indicated, contrary to this compelling corroborated
evidence, President Clinton testified before the grand jury
that he did not have ``sexual relations'' with Ms. Lewinsky.
The Committee has concluded that the President lied under oath
in making this statement. The obligation to tell the truth, the
whole truth, and nothing but the truth requires a complete
answer and does not allow a deponent to hide behind twisted
interpretations that a reasonable person would not draw. Such
``technical accuracy,'' as defined by the President, may pose
an even greater affront to the basic concepts of judicial
proceedings because it makes it impossible to achieve the
truth-seeking purpose of such a proceeding. Legal hairsplitting
used to bypass the requirement of telling the complete truth
directly challenges the deterrence factor of the nation's
perjury laws, denying a citizen her right to a constitutional
orderly disposition of her claims in a court of law.
While the President attempted to justify his perjurious
deposition testimony regarding his relationship with Ms.
Lewinsky by continuing to supply misleading answers concerning
the definition of ``sexual relations'' used in the deposition,
he lied before the grand jury about his contact with her even
under his misleading interpretation of that definition:
Q. If the person being deposed kissed the breast of another
person, would that be in the definition of sexual relations as
you understood it in the Jones case.
A. Yes, that would constitute contact . . .
Q. So, touching, in your view then and now--the person
being deposed touching or kissing the breast of another person
would fall within the definition?
A. That's correct sir.
Q. And you testified that you didn't have sexual relations
with Monica Lewinsky in the Jones deposition, under that
definition, correct?
A. That's correct, sir.
Q. If the person being deposed touched the genitalia of
another person, would that be'' and with the intent to arouse
the sexual desire, arouse or gratify, as defined in definition
(1), would that be, under your understanding then and now----
A. Yes, sir.
Q [continuing]. Sexual relations?
A. Yes, sir.
Q. Yes it would?
A. Yes, it would. If you had direct contact with any of
these places in the body, if you had direct contact with intent
to arouse or gratify, that would fall within the definition.
Q. So, you didn't do any of those three things----
A. You----
Q [continuing]. With Monica Lewinsky?
A. You are free to infer that my testimony is that I did
not have sexual relations, as I understood this term to be
defined.
Q. Including touching her breast, kissing her breast, or
touching her genitalia?
A. That's correct.
Grand Jury Testimony of President Clinton 8/17/98 p. 94-95, H.
Doc. 105-311 p. 546-47.
Another example of such perjurious, false, and misleading
grand jury testimony regarding the nature of this relationship
can be found on p. 92, lines 13-17. The President thus
testified that even under his strained and unrealistic
interpretation of the definition of ``sexual relationship'',
intended to cover that term as used in Ms. Lewinsky's false
affidavit, the touching of her breasts and genitalia would fall
under that definition and thus would constitute sexual
relations. While it is curious that the President would assert
that oral sex would not constitute sexual relations, but the
touching of breasts would constitute such relations, even under
his tortured reconstruction of the definition, the President
committed perjury. He denied before the grand jury that he
engaged in ``sexual relations as I understood that term to be
defined at my January 17th, 1998 deposition.'' As mentioned
above, he invoked this statement 19 times. Ms. Lewinsky
testified under oath on several occasions that the President
and she did engage in conduct that involved the touching of
breasts and genitalia and therefore did constitute sexual
relations even under the President's admitted interpretation of
the definition.
Ms. Lewinsky had every reason to tell the truth to the
grand jury. She was under a threat of prosecution for perjury
not only regarding her statements made on these occasions, but
on the statements made in her admittedly false affidavit if she
did not tell the truth, since truthful testimony was a
condition of the immunity agreement she made. As indicated, her
testimony is also corroborated.
The vague and evasive responses given by the President were
made in violation of the oath he took to tell ``the truth, the
whole truth and nothing but the truth.'' He asserted in his
grand jury testimony that because of his interpretation behind
the motives for the lawsuit being brought, he was entitled in
his deposition to answer in a manner that was less than
completely truthful. This argument has no basis in law and is
detrimental to the purpose of the oath. The technical and hair-
splitting legal arguments advanced by the President that he did
not have an obligation to tell the complete truth unless a
question was posed in a way that he had no choice but to give
the complete truth, or that he did not ``technically'' perjure
himself in his deposition, defy the common sense and human
experience which must be applied by any prospective fact-
finder in this case.
The President did not have to answer untruthfully in the
grand jury. The Constitution provided him with the opportunity
to assert his Fifth Amendment right to refuse to respond based
on his opinion that a completely truthful answer would tend to
incriminate him for prior acts of perjury and obstruction of
justice. He was apprised of this right in the grand jury
proceeding:
Q. You have a privilege against self-incrimination.
If a truthful answer to any question would tend to
incriminate you, you can invoke the privilege and that
invocation will not be used against you. Do you
understand that?
A. I do.
Q. And if you don't invoke it, however, any answer
that you give can and will be used against you. Do you
understand that, sir?
A. I do.
Grand Jury Testimony of President Clinton, 8/17/98, pp. 4-5, H.
Doc. 105-311, pp. 456-57.
Instead of invoking his right, the President chose to place
his own personal and political interests ahead of the interests
of justice and the nation and continued to assert that he did
not have sexual relations with Ms. Lewinsky. He also, as
indicated infra, lied about the truthfulness of his prior
testimony and his efforts to influence others related to the
Jones action.
The Committee has concluded that the President's statements
to the grand jury denying that he had sexual relations with Ms.
Lewinsky were calculated to avoid difficult questions regarding
his conduct and to project the appearance that he was being
forthright with the grand jury and the American people. In
fact, his premeditated and carefully prepared statements were
perjurious, false and misleading in light of corroborated
evidence to the contrary.
2. The Committee concluded that the President provided perjurious,
false, and misleading testimony to a Federal grand jury
concerning prior perjurious, false and misleading testimony he
gave in a federal civil rights action brought against him.
On August 17, 1998, the President gave perjurious, false,
and misleading testimony regarding prior statements of the same
nature he made in his deposition. Such testimony includes the
following:
Q. Now, you took the same oath to tell the truth, the
whole truth, and nothing but the truth on January 17th,
1998 in a deposition in the Paula Jones litigation; is
that correct, sir?
A. I did take an oath then.
Q. Did the oath you took on that occasion mean the
same to you then as it does today?
A. I believed then that I had to answer the questions
truthfully, that is correct.
Grand Jury Testimony of President Clinton, 8/17/98, pp. 6-7, H.
Doc. 105-311, pp. 457-58.
Q. You're not going back on your earlier statement
that you understand you were sworn to tell the truth,
the whole truth and nothing but the truth to the folks
at that deposition, are you, Mr. President?
A. No, sir, but I think we might as well put this out
on the table. You tried to get me to give a broader
interpretation to my oath than just my obligation to
tell the truth. In other words, you tried to say, even
though these people are treating you in an illegal
manner in illegally leaking these depositions, you
should be a good lawyer for them. And if they don't
have enough sense to write--to ask a question, and even
if Mr. Bennett invited them to ask follow-up questions,
if they didn't do it, you should have done all their
work for them.
Now, so I will admit this, sir. My goal in this
deposition was to be truthful, but not particularly
helpful. I did not wish to do the work of the Jones
lawyers. I deplored what they were doing. I deplored
the innocent people they were tormenting and
traumatizing. I deplored their illegal leaking. I
deplored the fact that they knew, once they knew our
evidence, that this was a bogus lawsuit, and that
because of the funding they had from my political
enemies, they were putting ahead. I deplored it.
But I was determined to work through the minefield of
this deposition without violating the law, and I
believe I did.
Grand Jury Testimony of President Clinton, 8/17/98, pp. 79-80,
H. Doc. 105-311, pp. 531-32.
The President did not believe that he had given truthful
answers in his deposition testimony. If he had, he would not
have related a false account of events to Betty Currie, his
secretary, who he knew, according to his own statements in the
deposition, might be called as a witness in the Jones case. He
would not have told false accounts to his aides who, he
admitted, he knew would be called to testify before the grand
jury. The President understood from previous conversations with
Monica Lewinsky that her affidavit, stating that they did not
have ``sexual relations'', was false. He knew that the
definition in the Jones case was meant to cover the same
activity as that mentioned in the affidavit. In fact, the
affidavit was directly mentioned in the President's deposition.
Rather than tell the complete truth, the President lied about
his relationship, the cover stories, the affidavit, the
subpoena and the search for a job for Ms. Lewinsky at his
deposition. He then denied committing perjury at his deposition
before the grand jury. The President thus engaged in a series
of lies and obstruction, each one calculated to cover the one
preceding it.
Throughout his grand jury testimony, the President
acknowledged that he was bound to tell the truth during the
January 17,1998, deposition in the Paula Jones case, as well as
before the grand jury on August 17, 1998:
Q. Mr. President, you understand that your testimony
here today is under oath?
A. I do.
Q. And do you understand that because you have sworn
to tell the truth, the whole truth, and nothing but the
truth, that if you were to lie or intentionally mislead
the grand jury, you could be prosecuted for perjury
and/or obstruction of justice?
A. I believe that's correct. . . .
Q. You understand that it requires you to give the
whole truth, that is, a complete answer to each
question, sir?
A. I will answer each question as accurately and
fully as I can.
Grand Jury Testimony of President Clinton, 8/17/98, pp. 457, H.
Doc. 105-311.
The President did not answer each question as accurately
and fully as he could have. In contrast to his assertions that
he testified truthfully when deposed on January 17, 1998, the
record reflects that the President did not ``work through the
minefield of [his deposition in the case of Jones v. Clinton]
without violating the law.'' In fact, the Committee has
concluded that President Clinton made multiple perjurious,
false and misleading statements during his deposition in the
case of Jones v. Clinton. Thus, his assertion before the grand
jury that he did not violate the law in the deposition is
itself a perjurious, false, and misleading statement and
evidence of his continuing efforts to deny and cover-up his
criminal wrongdoing. The details of the President's perjurious,
false, and misleading statements made during his deposition in
the case of Jones v. Clinton are set forth in Article II,
Paragraph 2.
3. The Committee concluded that the President provided perjurious,
false, and misleading testimony to a Federal grand jury
concerning prior false and misleading statements he allowed his
attorney to make to a Federal judge in that civil rights action
The President made perjurious, false and misleading
statements before the grand jury when he testified he did not
allow his attorney to refer to an affidavit before the judge in
the Jones case that he knew to be false:
Q. Mr. President, I want to before I go into a new subject
area, briefly go over something you were talking about with Mr.
Bittman.
The statement of your attorney, Mr. Bennett, at the Paul
Jones deposition, ``counsel is fully aware''--it's page 54 line
5--``counsel is fully aware that Ms. Lewinsky has filed, has an
affidavit which they are in possession of saying that there is
no sex of any kind in any manner, shape or form, with President
Clinton?
That statement is made by your attorney in front of Judge
Susan Webber Wright, correct?
A. That's correct.
Q. That statement is a completely false statement. Whether
or not Mr. Bennett knew of your relationship with Ms. Lewinsky,
the statement that there was ``no sex of any kind in any
manner, shape or form, with President Clinton,'' was an utterly
false statement. Is that correct?
A. It depends on what the meaning of the word ``is'' is. If
the--if he--if ``is'' means is and never has been, that is
not--that is one thing. If it means there is none, that was a
completely true statement.
But, as I have testified, and I'd like to testify again,
this is--it is somewhat unusual for a client to be asked about
his lawyer's statements, instead of the other way around. I was
not paying a great deal of attention to this exchange. I was
focusing on my own testimony.
Grand Jury Testimony of President Clinton, 8/17/98, pp. 57-58,
H. Doc. 105-311, pp. 509-510.
Further perjurious, false and misleading statements from
the President's grand jury testimony regarding this issue can
be found on p. 24, lines 6-20; p. 25, lines 1-6; p. 59, lines
16-23; p. 60, lines 4-15, and p. 61, lines 4-15.
On January 15, 1998, Robert Bennett, attorney for President
Clinton in the case of Jones v. Clinton, obtained a copy of the
affidavit Monica Lewinsky filed in an attempt to avoid having
to testify in the case of Jones v. Clinton. Grand Jury
Testimony of Frank Carter, 6/18/98, pp. 1, 12-13, H. Doc. 105-
316, pp. 420-21. In this affidavit, Monica Lewinsky asserted
that she had never had a sexual relationship with President
Clinton. At the President's deposition on January 17, 1988, an
attorney for Paula Jones began to ask the President questions
about his relationship with Ms. Lewinsky. Mr. Bennett objected
to the ``innuendo'' of the questions and he pointed out that
Ms. Lewinsky had signed an affidavit denying a ``sexual
relationship'' with the President. Mr. Bennett asserted that
this indicated ``there is no sex of any kind in any manner,
shape or form,'' between the President and Ms. Lewinsky, and
after a warning from Judge Wright he stated that, ``I am not
coaching the witness. In preparation of the witness for this
deposition, the witness is fully aware of Ms. Jane Doe 6's
affidavit, so I have not told him a single thing he doesn't
know.'' Mr. Bennett clearly used the affidavit in an attempt to
stop the questioning of the President about Ms. Lewinsky. The
President did not say anything to correct Mr. Bennett even
though he knew the affidavit was false. Judge Wright overruled
Mr. Bennett's objection and allowed the questioning to proceed.
Deposition of President Clinton in the Jones case, 1/17/98, p.
54.
Later in the deposition, Mr. Bennett read the President the
portion of Ms. Lewinsky's affidavit in which she denied having
a ``sexual relationship'' with the President and asked the
President if Ms. Lewinsky's statement was true and accurate.
The President responded: ``That is absolutely true.''
Deposition of President Clinton in the case of Jones v.
Clinton, 1/17/98, p. 204. The grand jury testimony of Monica
Lewinsky, given under oath and following a grant of
transnational immunity, confirmed that the contents of her
affidavit were not true:
Q. Paragraph 8 . . . [of the affidavit] says, ``I
have never had a sexual relationship with the
President.'' Is that true?
A. No.
Grand Jury Testimony of Monica Lewinsky, 8/6/98, H. Doc. 105-
311, p. 924.
When President Clinton was asked during his grand jury
testimony how he could have lawfully sat silent at his
deposition while his attorney made a false statement (``there
is no sex of any kind, in any manner shape or form'') to a
United States District Court Judge, the President first said
that he was not paying ``a great deal of attention'' to Mr.
Bennett when he said this. The President's videotaped
deposition, however, shows the President paying close attention
and squarely looking in Mr. Bennett's direction while Mr.
Bennett was making the statement about ``no sex of any kind.''
The President then argued that when Mr. Bennett made the
assertion that there ``is no sex of any kind. . . . ,'' Mr.
Bennett was speaking only in the present tense, as if he
understood that to be the case at the time the remark was made,
and when he was allegedly not paying attention to the remark.
The President stated, ``It depends on what the meaning of the
word ``is'' is, and that ``[i]f it means there is none, that
was a completely true statement.'' Grand Jury Testimony of
President Clinton, 8/17/98, pp. 57-61, H. Doc. 105-311, pp.
509-513; see also id., pp. 24-25, H. Doc. 105-311, pp. 476-77.
It is clear to the Committee that the President perjured
himself when he said that Mr. Bennett's statement that there
was ``no sex of any kind'' was ``completely true'' depending on
what the word ``is'' is. The President did not want to admit
that Mr. Bennett's statement was false, because to do so would
have been to admit that the term ``sexual relations'' as used
in the Lewinsky affidavit meant ``no sex of any kind.''
Admitting that would be to admit that he perjured himself
previously in his grand jury testimony and in his prior
deposition. Thus, the President engaged in an evolving series
of lies in sworn testimony in order to cover previous lies he
told in sworn testimony and previous obstructive conduct. In
all of this, it was the intention of the President to thwart
the ability of Paula Jones to bring a case against him and to
sidetrack the OIC investigation into his misconduct.
4. The Committee concluded that the President provided perjurious,
false, and misleading testimony to a Federal grand jury
concerning his corrupt efforts to influence the testimony of
witnesses and to impede the discovery of evidence in that civil
rights action
a. The President gave perjurious, false and misleading
testimony before the grand jury when he denied
engaging in a plan to hide evidence that had been
subpoenaed in the federal civil rights action
against him
The President made the following perjurious, false, and
misleading statements before the grand jury regarding efforts
to hide evidence that had been subpoenaed in the case of Jones
v. Clinton.
Q. Getting back to your meeting with Ms. Lewinsky on
December 28, you are aware that she's been subpoenaed.
You are aware, are you not, Mr. President, that the
subpoena called for the production of, among other
things, all the gifts that you had given Ms. Lewinsky?
You were aware of that on December 28, weren't you?
A. I'm not sure. And I understand this is an
important question. I did have a conversation with Ms.
Lewinsky at some time about gifts, the gifts I had
given her. I do not know whether it occurred on the
28th, or whether it occurred earlier. I do not know
whether it occurred in person or whether it occurred on
the telephone. I have searched my memory for this,
because I know it's an important issue.
Perhaps if you--I can tell you what I remember about
the conversation and you can see why I'm having trouble
placing the date.
Q. Please.
A. The reason I'm not sure it happened on the 28th is
that my recollection is that Ms. Lewinsky said
something to me like, what if they ask me about the
gifts you've given me. That's the memory I have. That's
why I question whether it happened on the 28th, because
she had a subpoena with her, request for production.
And I told her if they asked for gifts, she'd have to
give them whatever she had, that that's what the law
was.
Grand Jury Testimony of President Clinton, 8/17/98, p. 42-43,
H. Doc. 105-311, p. 494-495.
Essentially the same perjurious, false, and misleading
testimony is repeated by the President later in his grand jury
testimony, p. 45, lines 11-23.
The following testimony was also given:
Q. After you gave her the gifts on December 28th, did
you speak with your secretary, Ms. Currie, and ask her
to pick up a box of gifts that were some compilation of
gifts that Ms. Lewinsky would have----
A. No, sir, I didn't do that.
Q [continuing]. To give to Ms. Currie?
A. I did not do that.
Grand Jury Testimony of President Clinton, 8/17/98, p. 50, H.
Doc. 105-311, p. 502.
Similar perjurious, false, and misleading grand jury
testimony of President Clinton can be found on p. 113, lines
16-25, p. 114, lines 1-25 of the transcript from that grand
jury testimony of 8/17/98.
On December 19, 1997, Monica Lewinsky was served with a
subpoena in connection with the case of Jones v. Clinton. The
subpoena required her to testify at a deposition on January 23,
1998. The subpoena also required her to produce each and every
gift given to her by President Clinton. On the morning of
December 28, 1998, Ms. Lewinsky met with the President for
about 45 minutes in the Oval Office. By this time, President
Clinton knew Ms. Lewinsky had been subpoenaed. At this meeting
they discussed the fact that the gifts had been subpoenaed,
including a hat pin, the first gift Clinton had given Lewinsky.
Monica Lewinsky testified that at some point in this meeting
she said to the President, `` `Well, you know, I--maybe I
should put the gifts away outside my house somewhere or give
them to someone, maybe Betty'. And he sort of said--I think he
responded, `I don't know' or `Let me think about that.' And
left that topic.'' Grand Jury Testimony of Monica Lewinsky, 8/
6/98, p. 152, H. Doc. 105-311, p. 872; See also 7/27/98 OIC
Interview of Monica Lewinsky, p. 7, H. Doc. 105-311, p. 1395.
President Clinton provided the following explanation to the
grand jury and this Committee regarding this conversation:
``Ms. Lewinsky said something to me like, what if they ask me
about the gifts you've given me,'' but I do not know whether
that conversation occurred on December 28, 1997, or earlier.
Whenever this conversation occurred, I testified, I told her
``that if they asked her for gifts, she'd have to give them
whatever she had. . . .'' I simply was not concerned about the
fact that I had given her gifts. Indeed, I gave her additional
gifts on December 28, 1997. Request for Admission number 24;
see also Grand Jury Testimony of President Clinton, 8/17/98, p.
43, H. Doc. 105-311, p. 495. The President's statement that he
told Ms. Lewinsky that if the attorneys for Paula Jones asked
for the gifts, she had to provide them is perjurious, false and
misleading. It simply strains logic to believe the President
would encourage Monica Lewinsky to turn over the gifts. To do
so would have raised questions about their relationship and
would have been contrary to all of their other efforts to
conceal the relationship, including the filing of an affidavit
denying a sexual relationship. The fact that the President gave
Ms. Lewinsky additional gifts on December 28, 1998, provides
further evidence that the President did not believe Ms.
Lewinsky would provide gifts that had been subpoenaed. As Ms.
Lewinsky testified, she never questioned, ``that we were ever
going to do anything but keep this quiet.'' This meant that
they had to take ``whatever steps needed to be taken'' to keep
it quiet. By giving more gifts to Monica Lewinsky after she
received a subpoena to appear for a deposition in the case of
Jones v. Clinton, the President was making another gesture of
affection towards Ms. Lewinsky to help ensure that she would
not testify truthfully regarding their relationship.
Ms. Lewinsky testified that she was never under the
impression from anything the President said that she should
turn over to Ms. Jones's attorneys all the gifts that he had
given her. Deposition of Monica Lewinsky, 8/26/98, p. 58, H.
Doc. 105-311, p. 1337. Additionally, she said she can't answer
why the President would give her more gifts on the 28th when he
knew she was under an obligation to produce gifts in response
to a subpoena. She did testify, however, that, ``to me it was
never a question in my mind and I--from everything he said to
me, I never questioned him, that we were never going to do
anything but keep this private, so that meant deny it and that
meant do--take whatever appropriate steps needed to be taken,
you know, for that to happen . . .. So by turning over these
gifts, it would at least prompt [the Jones attorneys] to
question me about what kind of friendship I had with the
President. . . .'' Grand Jury Testimony of Monica Lewinsky, 8/
6/98, pp. 166-67, H. Doc. 105-311, pp. 886-87.
After this meeting on the morning of December 28th, Ms.
Currie called Monica Lewinsky and made arrangements to pick up
gifts the President had given to Ms. Lewinsky. Monica Lewinsky
testified under oath before the grand jury that a few hours
after meeting with the President on December 28, 1997, a
meeting in which Ms. Lewinsky and President Clinton discussed
the fact that gifts given to her by Mr. Clinton had been
subpoenaed in the case of Jones v. Clinton, Betty Currie called
her. The record indicates the following discussion occurred:
4 Q. What did [Betty Currie] say?
A. She said, ``I understand you have something to
give me.'' Or, ``The President said you have something
to give me.'' Along those lines. . . .
Q. When she said something along the lines of ``I
understand you have something to give me,'' or ``The
President says you have something for me,'' what did
you understand her to mean?
A. The gifts.
Grand Jury Testimony of Monica Lewinsky, 8/6/98, pp. 154-55, H.
Doc. 105-311, pp. 874.
Later in the day on December 28th, Ms. Currie drove to Ms.
Lewinsky's home and Ms. Lewinsky gave her a sealed box that
contained several gifts Ms. Lewinsky had received from the
President, including the hat pin. Grand Jury Testimony of
Monica Lewinsky, 8/6/98, pp. 156-58, H. Doc. 105-311, pp. 875-
78. Ms. Currie testified that she understood the box contained
gifts from the President. She took the box home and put it
under her bed. Grand Jury Testimony of Betty Currie, 5/6/98,
pp. 107-8, H. Doc. 105-316, p. 581. In Monica Lewinsky's
February 1, 1998 handwritten statement to the OIC, which Ms.
Lewinsky has testified is truthful, she stated, ``Ms. Currie
called Ms. L later that afternoon and said that the Pres. had
told her Ms. L wanted her to hold onto something for her. Ms. L
boxed up most of the gifts she had received and gave them to
Ms. Currie.'' 2/1/98 Handwritten Proffer of Monica Lewinsky, p.
7, H. Doc. 105-311, p. 715.
Betty Currie testified that she did not recall the
President telling her that Ms. Lewinsky wanted her to retrieve
and hold some items; that Ms. Lewinsky called her and asked her
to come get the gifts. Grand Jury Testimony of Betty Currie, 5/
6/98, pp. 105-6, H. Doc. 105-316, p. 581. When asked if a
contrary statement by Ms. Lewinsky--indicating that Ms. Currie
had in fact spoken to the President about the gift transfer--
would be false, Ms. Currie replied: ``She may remember better
than I. I don't remember.'' Grand Jury Testimony of Betty
Currie, 5/6/98, p. 126, H. Doc. 105-316, p. 584.
Further evidence before the Committee reveals that Betty
Currie telephoned Monica Lewinsky regarding the gifts, and not
the other way around:
Mr. Schippers: When Ms. Currie, when they wanted to
get rid of the gifts, Ms. Currie went and picked them
up, put them under her bed to keep them from anybody
else. Another mission accomplished?
Mr. Starr: That's right.
Mr. Schippers: By the way, there has been some talk
here that Monica said that she recalled that Betty
Currie called her and said, either the President wants
me to pick something up, or I understand you have
something for me to pick up. Later, Ms. Currie backed
off that and said, well, I am not sure, maybe Monica
called me. In the material that you made available, you
and your staff made available to us, there were 302s in
which Monica said, I think when Betty called me, she
was using her cell phone. Do you recall that, Judge
Starr?
Mr. Starr: I do.
Mr. Schippers: And in that same material that is in
your office that both parties were able to review and
that we did, in fact, review, there are phone records
of Ms. Currie; are there not?
Mr. Starr: There are.
Mr. Schippers: And there is a telephone call on her
cell phone to Monica Lewinsky's home on the afternoon
of December 28, 1997; isn't there?
Mr. Starr: That is correct.
Mr. Schippers: Once again, Monica is right and she
has been corroborated, right?
Mr. Starr: That certainly tends to corroborate Ms.
Lewinsky's recollection.
Impeachment Hearing on Inquiry Pursuant to H. Res. 581,
Thursday, November 19, 1998, Transcript pp. 407-409.
President Clinton testified before the grand jury, and
reiterated to this Committee (Request for Admission number 26)
that he did not recall any conversation with Ms. Currie on or
about December 28, 1997, about gifts previously given to Ms.
Lewinsky and that he never told Ms. Currie to take possession
of gifts he had given Ms. Lewinsky. Grand Jury Testimony of
President Clinton, 8/17/98, p. 50, H. Doc. 105-311, p. 502; see
also Grand Jury Testimony of President Clinton, 8/17/98, pp.
113-114, H. Doc. 105-311, pp. 565-66. This answer is false and
misleading because the evidence reveals that Betty Currie did
call Monica Lewinsky about the gifts and there is no reason for
her to do so unless instructed by the President. Because she
did not personally know of the gift issue, there is no other
way Ms. Currie could have known to call Ms. Lewinsky about the
gifts unless the President told her to do so. The President had
a motive to conceal the gifts because both he and Ms. Lewinsky
were concerned that the gifts might raise questions about their
relationship. By confirming that the gifts would not be
produced, the President ensured that these questions would not
arise. The concealment and non-production of the gifts to the
attorneys for Paula Jones allowed the President to provide
false and misleading statements about the gifts at his
deposition in the Jones case. Additionally, Ms. Lewinsky's
testimony on this subject has been consistent and unequivocal;
she provided the same facts in February, July and August. Betty
Currie's cell phone records show that she placed a one minute
call to Monica Lewinsky on the afternoon of December 28th.
b. The President made perjurious, false, and misleading
statements before the grand jury regarding his
knowledge that the contents of an affidavit
executed by a subordinate federal employee who was
a witness in the federal civil rights action
brought against him were untrue
The President provided the following perjurious, false and
misleading testimony to the grand jury:
Q. Did you tell her to tell the truth?
A. Well, I think the implication was she would tell
the truth. I've already told you that I felt strongly
she could execute an affidavit that would be factually
truthful, that might get her out of having to testify.
Now, it obviously wouldn't if the Jones people knew
this, because they knew if they could get this and leak
it, it would serve their larger purposes, even if the
judge ruled that she couldn't be a witness in that
case. The judge later ruled she wouldn't be a witness
in that case. The judge later ruled the case had no
merit.
So, I knew that. And did I hope she'd be able to get
out of testifying on an affidavit? Absolutely. Did I
want her to execute a false affidavit? No, I did not.
Q. If Monica has stated that her affidavit that she
didn't have a sexual relationship with you is, in fact,
a lie, I take it you disagree with that.
A. No. I told you before what I thought the issue was
there. I think the issue is how do you define sexual
relationship. And there is no definition imposed on her
at the time she executed the affidavit. Therefore, she
was free to give it any reasonable meaning.
Grand Jury Testimony of President Clinton, 8/17/98, p. 119-120,
H. Doc. 105-311, p. 571-572.
A similar perjurious, false, and misleading statement can
be found at p. 20, lines 20-25, p. 21, lines 1-16 of the
President's grand jury testimony
The President also provided the following perjurious,
false, and misleading testimony regarding his knowledge that
the contents of the affidavit were untrue:
Q. And do you remember that Ms. Lewinsky's affidavit
said that she had had no sexual relationship with you.
Do you remember that?
A. I do.
Q. And do you remember in the deposition that Mr.
Bennett asked you about that. This is at the end of
the--towards the end of the deposition. And you
indicated, he asked you whether the statement that Ms.
Lewinsky made in her affidavit was----
A. Truthful.
Q.--True. And you indicated that it was absolutely
correct.
A. I did. And at the time she made the statement, and
indeed to the present day because, as far as I know,
she was never deposed since the Judge ruled she would
not be permitted to testify in a case the Judge ruled
had no merit; that is, this case we're talking about.
I believe at the time she filled out this affidavit,
if she believed that the definition of sexual
relationship was two people having intercourse, then
this is accurate. And I believe that is the definition
that most ordinary Americans would give it.
Grand Jury Testimony of President Clinton, 8/17/98, pp. 20-21,
H. Doc. 105-311, pp.472-73.
Monica Lewinsky filed an affidavit in the Jones case, in
which she denied ever having a sexual relationship with the
President. During his deposition in that case, the President
affirmed that the statement of Monica Lewinsky in her affidavit
denying a sexual relationship was ``absolutely true.''
Deposition of President Clinton in the case of Jones v.
Clinton, 1/17/98, p. 204. Monica Lewinsky has stated that she
is ``100 percent sure'' that the President suggested she might
want to sign an affidavit to avoid testifying in the case of
Jones v. Clinton. 8/19/98 OIC interview of Monica Lewinsky, pp.
4-5, H. Doc. 105-311, pp. 1558-9, see also Grand Jury Testimony
of Monica Lewinsky, 8/6/98, pp. 123-24, H. Doc. 105-311, pp.
834-44. President Clinton told this Committee he believed he
told Ms. Lewinsky ``other witnesses had executed affidavits,
and there was a chance they would not have to testify.''
Request for Admission number 18. The President gave the
following testimony before the grand jury ``And did I hope
she'd be able to get out of testifying on an affidavit?
Absolutely. Did I want her to execute a false affidavit? No I
did not.'' Grand Jury Testimony of President Clinton, 8/17/98,
p. 119, H. Doc. 105-311, p. 571.
This testimony is false and misleading because it is not
possible that Monica Lewinsky could have filed a full and
truthful affidavit, i.e. an affidavit acknowledging a sexual
relationship with the President, that would have helped her to
avoid a deposition in the Jones case. The attorneys for Paula
Jones were seeking evidence of sexual relationships the
President may have had with other state or federal employees.
Such information is often deemed relevant in sexual harassment
lawsuits to help prove the underlying claim of the Plaintiff
and Judge Susan Weber Wright ruled that Paula Jones was
entitled to this information for purposes of discovery.
Consequently, if Monica Lewinsky acknowledged a sexual
relationship with the President in her affidavit, then she
certainly could not have avoided a deposition. The President
had to be aware of this and this renders his grand jury
testimony on this subject false and misleading.
c. The President made perjurious, false, and misleading
statements before the grand jury when he recited a
false account of the facts regarding his
interactions with Monica Lewinsky to Betty Currie,
a potential witness in the federal civil rights
action brought against him
The President provided the following perjurious, false and
misleading testimony concerning the false account he provided
to Betty Currie regarding his relationship with Ms. Lewinsky:
Q. What was your purpose in making these statements
to Miss Currie, if they weren't for the purpose to try
to suggest to her if ever asked?
A. Now, Mr. Bittman, I told you, the only thing I
remember is when all the stuff blew up, I was trying to
figure out what the facts were. I was trying to
remember.
Grand Jury Testimony of President Clinton, 8/17/98, p. 138-39,
H. Doc. 105-311, pp. 590-91.
For very similar perjurious, false and misleading grand
jury testimony of President Clinton, see p. 54, lines 19-25, p.
55, lines 1-25 and p. 56, lines 1-16; p. 130, lines 18-25, p.
131, lines 1-14; p. 141, lines 7-12 and 23-25, p. 142, lines 1-
3.
The record reflects that President Clinton attempted to
influence the testimony of Betty Currie, his personal
secretary, by coaching her to recite inaccurate answers to
possible questions that might be asked of her if called to
testify in the Paula Jones case. The President did this shortly
after he had been deposed in the case.
In his grand jury testimony and responses to the
Committee's Requests for Admission, the President was
occasionally evasive and vague on this point. He stated that on
January 18, 1998, he met with Ms. Currie and ``. . . asked her
certain questions, in an effort to get as much information as
quickly as I could and made certain statements, although I do
not remember exactly what I said.'' Grand Jury Testimony of
President Clinton, 8/17/98, H. Doc. 105-311, p. 508; Response
of President Clinton to Question No. 52 of the Committee's
Requests for Admission. The President added that he urged Ms.
Currie to ``tell the truth'' after learning that the Office of
Independent Counsel (OIC) might subpoena her to testify. (Id at
p. 591.)
The President also stated that he could not recall how many
times he had talked to Ms. Currie or when, in response to OIC
questioning on the subject of a similar meeting that took place
on or about January 20 or 21, 1998. He claimed that by asking
questions of Ms. Currie he was only attempting to ``. . .
ascertain what the facts were, trying to ascertain what Betty's
perception was.'' Grand Jury Testimony of President Clinton, 8/
17/98, H. Doc. 105-311, pp. 592-93; Response of President
Clinton to Question No. 53 of the Committee's Requests for
Admission.
While testifying before the grand jury, Ms. Currie was more
precise in her recollection of the two meetings. An OIC
attorney asked her if the President had made a series of
leading statements or questions that were similar to the
following:
You were always there when she [Monica Lewinsky] was
there, right? We were never really alone.''
You could see hear and hear everything.
Monica came on to me, and I never touched her, right?
She wanted to have sex with me and I couldn't do
that.
In her testimony Ms. Currie indicated that the President's
remarks were ``more like statements than questions.'' Based on
his demeanor and the manner in which he asked the questions,
she concluded that the President wanted her to agree with him.
Ms. Currie thought that the President was attempting to gauge
her reaction, and appeared concerned. OIC Referral, H. Doc.
105-3 10, pp. 191-92; Grand Jury Testimony of Betty Currie, 1/
27/98, pp. 71-76, H. Doc. 105-316, pp. 559-60.
Ms. Currie also acknowledged that while she indicated to
the President that she agreed with him, in fact she knew that,
at times, he was alone with Ms. Lewinsky and that she could not
or did not hear or see the two of them while they were alone.
As to their subsequent meeting on January 20 or 21, 1998,
Ms. Currie stated that ``. . . it was sort of a recapitulation
of what we had talked about on Sunday [January 18, 19981. . .
.'' Grand Jury Testimony of Betty Currie, 1/27/98, p. 81, H.
Doc. 105-316, p. 561.
d. The President made perjurious, false and misleading
statements before the grand jury concerning
statements he made to aides regarding his
relationship with Monica Lewinsky
The President gave the following perjurious testimony under
oath before the grand jury:
Q. Did you deny to them or not, Mr. President?
A. Let me finish. So, what--I did not want to mislead
my friends but I want to define language where I can
say that. I also, frankly, do not want to turn any of
them into witnesses, because I--and, sure enough, they
all became witnesses.
Q. Well you knew they might be----
A. And so----
Q. Witnesses, didn't you?
A. And so I said to them things that were true about
this relationship. That I used--in the language I used,
I said, there is nothing go on between us. That was
true. I said, I have not had sex with her as I defined
it. That was true. And did I hope that I would never
have to be here on this day giving this testimony? Of
course. But I also didn't want to do anything to
complicate this matter further. So, I said things that
were true. They may have been misleading, and if they
were, I have to take responsibility for it, and I'm
sorry.
Grand Jury Testimony of President Clinton 8/17/98, p. 105-106,
H. Doc. 105-311 p. 557-558.
Another perjurious, false and misleading statement by the
President regarding conversations with his aides is recorded on
p. 100, lines 20-25 of the grand jury transcript.
The following grand jury testimony of several Presidential
aides demonstrates that the President's testimony that he
``said things that were true'' to his aides is clearly
perjurious, false and misleading.
The record reflects that President Clinton met with a total
of five aides who would later be called to testify before the
grand jury shortly after the President's deposition in the
Paula Jones case and following a Washington Post story,
published on January 21, 1998, which detailed the relationship
between the President and Monica Lewinsky. During the meetings
the President made untrue statements to his aides:
Sidney Blumenthal
Testifying before the grand jury on June 4, 1998, Sidney
Blumenthal, an Assistant to the President, related the
following discussion he had with the President on January 21,
1998:
He said Dick Morris had called him that day and he
said Dick had told him that Nixon--he had read the
newspaper and he said ``You know, Nixon could have
survived if he had gone on television and given an
address and said everything he had done wrong and got
it all out in the beginning.''
And I said to the President, ``What have you done
wrong?'' And he said, ``Nothing, I haven't done
anything wrong.'' I said, ``Well then, that's one of
the stupidest things I've ever heard. Why would you do
that if you've done nothing wrong?'
And it was at that point that he gave his account of
what had happened to me and he said that Monica--and it
came very fast. He said, ``Monica Lewinsky came at me
and made a sexual demand on me.'' He rebuffed her. He
said, I've gone down that road before, I've caused pain
for a lot of people and I'm not going to do that
again.''
Grand Jury Testimony of Sidney Blumenthal, 6-4-98, p. 49, H.
Doc. 105-316, p. 185.
John Podesta
In his grand jury testimony on June 16, 1998, then White
House Deputy Chief of Staff John Podesta (now Chief Of Staff)
testified to the following regarding a January 21, 1998 meeting
with President Clinton:
A. And we went in to see the President.
Q. Who's we?
A. Mr. Bowles, myself and Ms. Matthews.
Q. Okay. Tell us about that.
A. And we started off the meeting--we didn't--I don't
think we said anything, and I think the President
directed this specifically to Mr. Bowles. He said,
``Erskine, I want you to know that this story is not
true.
Q. What else did he say?
A. He said that--that he had not had a sexual
relationship with her, and that he never asked anybody
to lie.
Grand Jury Testimony of John Podesta, 6/16/98, p. 85, H. Doc.
105-316, p. 3310.
Erskine Bowles had the following recollection of the same
meeting:
A. And this was the day this huge story breaks. And
the three of us walk in together--Sylvia Matthews, John
Podesta and me--into the oval office, and the President
was standing behind his desk.
Q. About what time of day is this?
A. This is approximately 9:00 in the morning or
something--you know, in that area. And he looked up at
us and he said the same thing he said to the American
people. He said, I want you to know I did not have
sexual relationships with this woman Monica Lewinsky. I
did not ask anybody to lie. And when the facts come
out, you'll understand.
Grand Jury Testimony of Erskine Bowles, 4/2/98, pp. 83-84, H.
Doc. 105-316, p. 239.
The record indicates the President also had a January 23,
1998, conversation with John Podesta, in which you stated that
you had never had an affair with Monica Lewinsky?
A. See, we were getting ready to do the State of the
Union prep and he was working on the state of the union
draft back in his study. I went back there to just to
kind of get him going--this is the first thing in the
morning--you know, we sort of get engaged. I asked him
how he was doing, and he said he was working on this
draft, and he said to me that he had never had sex with
her, and that--he never asked--you know, he repeated
the denial, but he was extremely explicit in saying he
never had sex with her.
Q. How do you mean?
A. Just what I said.
Q. Okay. Not explicit, in the sense that he got more
specific than sex, than the word ``sex.''
A. Yes, he was more specific than that.
Q. Okay. Share that with us.
A. Well, I think he said--he said that--there was
some spate of, you know, what sex acts were counted,
and he said that he had never had sex with her in any
way whatsoever----
Q. Okay.
A. That they had not had oral sex.
Q. No question in you mind he's denying any sex in
any way, shape or form, correct?
A. That's correct.
Grand Jury Testimony of John Podesta, 6/16/98, pp. 91-3, H.
Doc. 105-316, p. 3311.
In that same January 23rd conversation with John Podesta,
the President stated he was not alone with Monica Lewinsky in
the Oval Office, and that Betty Currie was either in his
presence or outside his office with the door open while he was
visiting with Monica Lewinsky:
Q. Did the President ever speak to that issue with
you, the issue of if he didn't have an improper
relationship with Ms. Lewinsky, what was she doing
there so often? Did he ever speak to that?
A. He said to me--I don't think it was in this
conversation, I think it was a couple weeks later. He
said to me that after she left, that when she had come
by, she came to see Betty, and that he--when she was
there, either Betty was with them--either that she was
with Betty when he saw her or that he saw her in the
Oval Office with the door open and Betty was around--
and Betty was out at her desk.
Grand Jury Testimony of John Podesta, 6/16/98, p. 88, H. Doc.
105-316, p. 3310.
Harold Ickes
On or about January 26, 1998, The President had a
conversation with Harold Ickes, in which he made statements to
the effect that he did not have an affair with Monica Lewinsky:
Q. What did the President say about Monica Lewinsky?
A. The only discussion I recall having with him, he
denied that he had had sexual relations with Ms.
Lewinsky and denied that he had--I don't know how to
capsulize it--obstructed justice, let's use that
phrase.
Grand Jury Testimony of Harold Ickes, 6/10/98, p. 21, H. Doc.
105-316, p. 1487; See also Grand Jury Testimony of Harold Ickes
from 8/5/98, p. 88, H. Doc. 105-316, p. 1610 (``He denied to me
that he had had a sexual relationship. I don't know the exact
phrase, but the word `sexual' was there. And he denied any
obstruction of justice'')).
5. Explanation of the Rogan Amendment to Article I
The Committee adopted an amendment to Article I of the
Resolution offered by Representative Rogan of California.
Article I addresses certain statements which the President made
during his grand jury testimony on August 17, 1997. More
explicitly, the Article charges the President with providing
perjurious, false, and misleading testimony governing the
following topics:
The nature and details of his relationship with a
subordinated Government employee;
Prior testimony in a deposition he gave in a Federal
civil rights action against brought against him in the
case of Jones v. Clinton;
Prior false and misleading statements he allowed his
attorney to make to a Federal judge in that civil
rights action; and
His corrupt efforts to influence the testimony of
witnesses and to impede the discovery of evidence in
that civil rights action.
The Rogan amendment supplements the language of Article I
by specifying that the President willfully provided perjurious,
false, and misleading testimony to the grand jury concerning
any one or more of the four topics enumerated. In other words,
contrary to his grand jury oath, the President provided
perjurious, false, and misleading testimony about ``one or
more'' of the four topics.
The Rogan language simply tracks identical language invoked
in the 1974 Articles of Impeachment against President Nixon.
Like the evidence in the Nixon precedent, the evidence in the
instant case is sufficient to sustain President Clinton's
culpability under Article I for his testimony concerning all
four topics collectively, or each topic individually.
B. Article II--Perjury in the Civil Case
1. The Committee concluded that the President provided perjurious,
false, and misleading testimony in a Federal civil rights
action in response to written questions
On December 23, 1997, William Jefferson Clinton, in sworn
answers to written questions asked as part of a Federal civil
rights action brought against him, willfully provided
perjurious, false and misleading testimony in response to
questions deemed relevant by a Federal judge concerning conduct
and proposed conduct with subordinate employees.
The evidence reveals that the President Clinton made
perjurious, false, and misleading statements in response to
written interrogatories in the civil rights case of Jones v.
Clinton. The perjurious, false, and misleading statements are
set forth below:
1. Interrogatory Number 10: Please state the name, address, and
telephone number of each and every individual (other than
Hillary Rodham Clinton) with whom you had sexual relations when
you held any of the following positions:
a. Attorney General of the State of Arkansas;
b. Governor of the State of Arkansas;
c. President of the United States.
On December 11, 1997, the Court issued an order modifying
the scope of the interrogatories to incidents from May 8, 1986
to the present involving state or federal employees and
compelling the President to answer the interrogatories.
The President's December 23, 1997, supplemental response to
Interrogatory Number 10 (as modified by direction of the
Court): None
2. Interrogatory Number 11: Please state the name, address, and
telephone number of each and every individual (other than
Hillary Rodham Clinton) with whom you sought to have sexual
relations when you held any of the following positions:
a. Attorney General of the State of Arkansas;
b. Governor of the State of Arkansas;
c. President of the United States.
The same court order modifying the scope of the
interrogatories to incidents from May 8, 1986 to the present
involving state or federal employees and compelling the
President to answer the interrogatories was applicable to this
question.
The President's December 23, 1997, supplemental response to
Interrogatory Number 10 (as modified by direction of the
Court): None
It is clear from the evidence before the Committee that the
President did have sexual relations with Monica Lewinsky, a
young, subordinate federal employee in the Oval Office complex
of the White House while he was President of the United States.
It is also evident that he sought to have sexual relations with
her. This evidence includes, as cited previously, the sworn
testimony of Monica Lewinsky, corroborated by the testimony of
others and by phone and entrance records. In addition, DNA
evidence before the Committee reveals that the President's
semen was found on Ms. Lewinsky's dress.
2. The Committee concluded that the President provided perjurious,
false, and misleading testimony in a Federal civil rights
action in his deposition
On January 17, 1998, William Jefferson Clinton swore under
oath to tell the truth, the whole truth, and nothing but the
truth in a deposition given as part of a Federal civil rights
action brought against him. Contrary to that oath, William
Jefferson Clinton willfully provided perjurious, false and
misleading testimony in response to questions deemed relevant
by a Federal judge concerning the nature and details of his
relationship with a subordinate government employee, his
knowledge of that employee's involvement and participation in
the civil rights action brought against him, and his corrupt
efforts to influence the testimony of that employee.
The record indicates that on January 17, 1998, before
beginning to respond to questions during a deposition in a
civil rights lawsuit in which he was a named defendant, the
President answered in the affirmative to the question, ``Do you
swear and affirm that your testimony will be the truth, the
whole truth and nothing but the truth, so help you God.'' In
the President's Response for Admissions Number 5, the President
admits that he took an oath to tell the truth before his
deposition in the Jones v. Clinton case.
a. The President lied in his deposition about the nature of
his conduct with a subordinate federal employee who
was a witness in the federal civil rights action
brought against him
In the President's Deposition he admits that Monica
Lewinsky is a federal employee:
Q. Now, do you know a woman named Monica Lewinsky?
A. I do.
Q. How do you know her?
A. She worked in the White House for a while, first
as an intern, and then in, as the, in the legislative
affairs office.
Deposition of President Clinton, 1/17/97, p. 1.
The President was asked about his conduct with Monica
Lewinsky and in his deposition he denied having sexual
relations with Monica Lewinsky. The definition of sexual
relations was: ``For purposes of this deposition, a person
engages in `sexual relations' when the person knowingly engages
in or causes--(1) contact with the genitalia, anus, groin,
breast, inner thigh, or buttocks of any person with an intent
to arouse or gratify the sexual desire of any person; (2)
contact between any part of the person's body or an object and
the genitals or anus of another person; or (3) contact between
the genitals or anus of the person and any part of another
person's body. `Contact' means intentional touching, either
directly or through clothing.''
Q. Did you have an extramarital sexual affair with
Monica Lewinsky?
A. No.
Q. If she told someone that she had a sexual affair
with you beginning in November of 1995, would that be a
lie?
A. It's certainly not the truth. It would not be the
truth.
Q. I think I used the term ``sexual affair.'' And so
the record is completely clear, have you ever had
sexual relations with Monica Lewinsky, as that term is
defined in Deposition Exhibit 1, as modified by the
Court.
A. I have never had sexual relations with Monica
Lewinsky. I've never had an affair with her.
Deposition of President Clinton, 1/17/98, p. 78.
According to the sworn testimony of Monica Lewinsky, she
and the President had 11 sexual encounters, 8 while she worked
at the White House and 2 thereafter. The sexual encounters
generally occurred in or near the oval office private study.
The evidence indicates that the conduct the President had with
Ms. Lewinsky met the definition and that he lied about their
conduct. According to Ms. Lewinsky, she performed oral sex on
the President; he never performed oral sex on her. OIC
Referral, H. Doc. 105-310, p. 17.
The record indicates an agreement to deny the conduct and
that a relationship existed between the President and Monica
Lewinsky:
Q. Had you talked with [the President] earlier [than
December 17] about . . . false explanations about what
you were doing visiting him on several occasions?
A. Several occasions throughout the entire
relationship. . . . It was the pattern of the
relationship to sort of conceal it.
Grand Jury Testimony of Monica Lewinsky, 8/6/98, p. 124, H.
Doc. 105-311, p. 844.
The Committee has concluded that the President lied under
oath about his relationship with Monica Lewinsky in his
deposition in accord with an agreement to lie developed
earlier.
b. The President lied in his deposition after being asked
if anyone had reported to him within the past two
weeks that they had had a conversation with a
subordinate federal employee concerning the Jones
v. Clinton lawsuit
Q. . . . within the past two weeks has anyone
reported to you that they had had a conversation with
Monica Lewinsky concerning this lawsuit?
A. I don't believe so. I'm sorry, I just don't
believe so.
Deposition of President Clinton, 1/17/98, pp. 12-13 of public
copy.
The record indicates that a telephone conversation took
place on January 6, 1998, with Vernon Jordan and President
Clinton during which President Clinton discussed Monica
Lewinsky's affidavit, yet to be filed, in the case of Jones v.
Clinton. See Telephone Calls, Table 35, included in Appendix G
as referenced in note 928, H. Doc. 105-310, p. 108 (Vernon
Jordan telephones the President less than 30 minutes after
speaking with Monica Lewinsky over the telephone about her
draft affidavit).
The record indicates that the President had knowledge of
the fact that Monica Lewinsky executed for filing an affidavit
in the case of Jones v. Clinton on January 7, 1998.
Q. . . . [Y]ou conveyed . . . both to Betty Currie
and to the President--namely, that you knew Ms.
Lewinsky had signed the affidavit [on January 7, 1998]?
A. ``Right.''
Grand Jury Testimony of Vernon Jordan, 5/5/98, p. 223, H. Doc.
105-316, p. 1828.
The record indicates that on or about January 7, 1998, the
President had a discussion with Vernon Jordan in which Mr.
Jordan mentioned that Monica Lewinsky executed for filing an
affidavit in the case of Jones v. Clinton.
Q. Okay, do you believe that it would have been
during one of these calls [phone conversations between
the President and Vernon Jordan on January 7, 1998]
that you would have indicated to the President that Ms.
Lewinsky had, in fact, signed the affidavit?
A. That, too, is a reasonable assumption.
Grand Jury Testimony of Vernon Jordan, 5/5/98, p. 224, H. Doc.
105-316, p. 1828.
Furthermore, the President acknowledged before the grand
jury and to this Committee, that Vernon Jordan discussed Monica
Lewinsky's affidavit with him and within two weeks of his
deposition. ``As I testified before the grand jury, `I believe
that [Mr. Jordan] did notify us' when she signed the affidavit.
While I do not remember the timing, as I told the grand jury, I
have no reason to doubt Mr. Jordan's statement that he notified
me about the affidavit around January 7, 1998.'' See Request
for Admission number 29 and Grand Jury testimony of President
Clinton, 8/17/98, H. Doc. 105-311, p. 525.
c. The President lied in his deposition about his being
alone or in certain locations with a subordinate
federal employee who was a witness in the action
brought against him
President Clinton gave the following testimony under oath
in his deposition in the case of Jones v. Clinton regarding the
subject:
Q. Is it true that when she worked at the White House
she met with you several times?
A. I don't know about several times. There was a
period when the Republican Congress shut the government
down that the whole White House was being run by
interns, and she was assigned to work back in the chief
of staffs office, and we were all working there, and so
I saw her on two or three occasions then, and then when
she worked at the White House, I think there was one or
two other times when she brought some documents to me.
Deposition of President Clinton, 1/17/98, pp. 50-51.
Q. At any time were you and Monica Lewinsky alone in
the hallway between the Oval Office and this kitchen
area?
A. I don't believe so, unless we were walking back to
the back dining room with the pizzas. I just, I don't
remember. I don't believe we were alone in the hallway,
no.
Q. Are there doors at both ends of the hallway?
A. They are, and they're always open.
Q. At any time have you and Monica Lewinsky ever been
alone together in any room in the White House?
A. I think I testified to that earlier. I think that
there is a, it is--I have no specific recollection, but
it seems to me that she was on duty on a couple of
occasions working for the legislative affairs office
and brought me some things to sign, something on the
weekend. That's--I have a general memory of that.
Q. Do you remember anything that was said in any of
those meetings.
A. No. You know, we just have conversation. I don't
remember.
Deposition of President Clinton, 1/17/98, p. 58.
The record indicates that a plan existed to cover the fact
that they were alone and were having a sexual relationship.
Monica Lewinsky provided the following testimony under oath
regarding this subject:
Q. I would like to ask you some questions about any
steps you took to keep your relationship with the
President secret.
A. A lot.
Q. All right. Well, why don't we just ask the
question open-endedly and we'll follow up.
A. Okay. I'm sure, as everyone can imagine, that this
is a kind of relationship that you keep quiet, and we
both wanted to be careful being in the White House.
Whenever I would visit him during--when--during my
tenure at the White House, we always--unless it was
sort of a chance meeting on the weekend and then we
ended up back in the office, we would usually plan that
I would either bring papers, or one time we had
accidentally bumped into each other in the hall and
went from that way, so then we planned to do that again
because that seemed to work well. But we always--there
was always some sort of a cover.
Q. When you say you planned to bring papers, did you
ever discuss with the President the fact that you would
try to use that as a cover?
A. Yes.
Q. Okay. What did the two of you say in those
conversations?
A. I don't remember exactly. I mean, in general, it
might have been something like me saying, well, maybe
once I got there kind of saying, ``Oh, gee here are
your letters,'' wink, wink, wink, and him saying:
``Okay that's good,'' or--
Q. And as part of this concealment, if you will, did
you carry around papers when you went to visit the
President while you worked at Legislative Affairs?
A. Yes, I did.
Q. Did you ever actually bring him papers to sign as
part of business?
A. No.
Q. Did you actually bring him papers at all?
A. Yes.
Q. All right. And tell us a little about that.
A. It varied. Sometimes it was just actual copies of
letters. One time I wrote a really stupid poem.
Sometimes I put gifts in the folder which I brought.
Q. And even on those occasions, was there a
legitimate business purpose to that?
A. No.
Grand Jury Testimony of Monica Lewinsky, 8/6/98, pp. 53-55, H.
Doc. 105-311, p. 977.
President Clinton was also asked during his deposition on
January 17, 1998:
Q. Has it ever happened that a White House record was
created that reflected that Betty Currie was meeting
with Monica Lewinsky when in fact you were meeting with
Monica Lewinsky?
A. Not to my knowledge.
Deposition Testimony of President Clinton in the case of Jones
v. Clinton, 1/17/98.
The record indicates the President had such discussions
with Monica Lewinsky prior to December 17, 1997 that Betty
Currie should be the one to clear Ms. Lewinsky in to see him so
that Ms. Lewinsky could say that she was visiting with Ms.
Currie instead of with him. Monica Lewinsky provided the
following testimony under oath regarding this subject:
Q. Did you ever [prior to your conversation with the
President on December 17] have discussions with the
President about what you would say about your frequent
visits with him after you had left legislative affairs?
A. Yes.
Q. Yes. What was that about?
A. I think we--we discussed that--you know, the
backwards route of it was that Betty always needed to
be the one to clear me in so that, you know, I could
always say I was coming to see Betty.
Grand Jury Testimony of Monica Lewinsky, 8/6/98, p. 55, H. Doc.
105-311, p. 977.
Q. Did you come to have a telephone conversation with
the President on December 17?
A. Yes . . .
Q. Tell us how the conversation went from there . . .
A. . . . At some point in the conversation, and I
don't know if it was before or after the subject of the
affidavit came up, he sort of said, ``You know, you can
always say you were coming to see Betty or that you
were bringing me letters.'' Which I understood was
really a reminder of things that we had discussed
before.
Grand Jury Testimony of Monica Lewinsky, 8/6/98, p. 123, H.
Doc. 105-311, p. 843.
In his grand jury testimony, the President himself admits
that he was alone with Ms. Lewinsky: ``When I was alone with
Ms. Lewinsky on certain occasions in early 1996 and once in
early 1997, I engaged in conduct that was wrong.'' Grand Jury
Testimony of President Clinton, 8/17/98, pp. 8-9, H. Doc. 105-
311, pp. 460-61.
d. The President lied in his deposition about his knowledge
of gifts exchanged between himself and a
subordinate federal employee who was a witness in
the action brought against him
The record indicates that the President did present each of
these items as gifts to Monica Lewinsky:
1. A lithograph
2. A hatpin
3. A large ``Black Dog'' canvas bag
4. A large ``Rockettes'' blanket
5. A pin of the New York skyline
6. A box of ``cherry chocolates''
7. A pair of novelty sunglasses
8. A stuffed animal from the ``Black Dog''
9. A marble bear's head
10. A London pin
11. A shamrock pin
12. An Annie Lennox compact disc
13. Davidoff cigars
A chart prepared as part of her testimony before the Grand
Jury details Monica Lewinsky's visits to the President and the
exchange of gifts during those visits is contained in H. Doc.
105-311, pp. 1251-61.
The record indicates that the President gave false and
misleading testimony in his deposition when he responded ``once
or twice'' to the question ``has Monica Lewinsky ever given you
any gifts?''
Q. Has Monica Lewinsky ever given you any gifts?
A. Once or twice. I think she's given me a book or two.
Deposition of President Clinton in the case of Jones v.
Clinton, 1/17/98, p. 76.
The evidence shows that Ms. Lewinsky gave the President
approximately a total of 38 gifts presented on numerous
occasions. (See chart in House Document 105-311, pp. 1251-61.)
The record indicates that the President had a discussion
with Monica Lewinsky regarding the gifts he had given to Ms.
Lewinsky that were subpoenaed in the case of Jones v. Clinton.
A. We--we really spent maybe about five--no more than ten
minutes talking about the Paula Jones case on [December 28] . .
. I brought up the subject of the case because I was concerned
about how I had been brought into the case and been put on the
witness list . . . And then at some point I said to him,
``Well, you know, I--maybe I should put the gifts away outside
my house somewhere or give them to someone, maybe Betty.'' And
he sort of said--I think he responded, ``I don't know'' or
``Let me think about that.'' And left that topic.
Grand Jury Testimony of Monica Lewinsky, 8/6/98, p. 152, H.
Doc. 105-311, p. 872; See also 7/27/98 OIC Interview of Monica
Lewinsky, p. 7, H. Doc. 105-311, p. 1395.
Furthermore, the evidence shows that President Clinton and
Monica Lewinsky discussed the hat pin gift on December 28,
1997, after Ms. Lewinsky received a subpoena calling for her to
produce all gifts she received from Mr. Clinton, including any
hat pins. Ms. Lewinsky stated under oath before the grand jury
that ``I mentioned that I had been concerned about the hat pin
being on the subpoena and he said that that had sort of
concerned him also and asked me if I had told anyone that he
had given me the hat pin and I said no.'' Grand Jury Testimony
of Monica Lewinsky, 8/6/98, p. 152, H. Doc. 105-311, p. 1000.
The record indicates that the President stated that he did
not recall giving gifts to Ms. Lewinsky even though he had
knowledge:
Q. Well, have you ever given any gifts to Monica Lewinsky?
A. I don't recall. Do you know what they were?
Q. A hat pin?
A. I don't, I don't remember. But I certainly, I could
have.
Deposition of President Clinton in the case of Jones v.
Clinton, 1/17/98, p. 75. See also request for admission number
41 for evidence of numerous gifts Mr. Clinton gave to Ms.
Lewinsky.
e. The President lied in his deposition about his knowledge
about whether he had ever spoken to a subordinate
federal employee about the possibility that such
subordinate employee might be called as a witness
to testify in the federal civil rights action
brought against him.
President Clinton was asked about this subject during his
deposition on January 17, 1998:
Q. Did you ever talk with Monica Lewinsky about the
possibility that she might be asked to testify on this case?
A. Bruce Lindsey, I think Bruce Lindsey told me that she
was, I think maybe that's the first person [who] told me she
was. I want to be as accurate as I can. . . .
Q. I believe I was starting to ask you a question a moment
ago and we got sidetracked. Have you ever talked to Monica
Lewinsky about the possibility that she might be asked to
testify in this lawsuit?
A. I'm not sure, and let me tell you why I'm not sure. It
seems to me the, the, the--I want to be as accurate as I can
here. Seems to me the last time she was there to see Betty
before Christmas we were joking about how you--all, with the
help of the Rutherford Institute, were going to call every
woman I'd ever talked to and ask them that, and so I said you
would qualify, or something like that. I don't think we ever
had more of a conversation than that about it . . .''
Deposition Testimony of President Clinton in the case of Jones
v. Clinton, 1/17/98 pp. 70-71.
The record indicates that the President did indeed tell
Monica Lewinsky about the appearance of her name on December
17, 1998:
Q. . . . Did you come to have a telephone conversation with
the President on December 17?
A. Yes . . . he told me he had some more bad news, that he
had seen the witness list for the Paula Jones case and my name
was on it . . . He told me that it didn't necessarily mean that
I would be subpoenaed, but that that was a possibility, and if
I were subpoenaed, that I should contact Betty and let Betty
know that I had received the subpoena.
Grand Jury Testimony of Monica Lewinsky, 8/6/98, p. 123, H.
Doc. 105-311, p. 843.
The record indicates that the President on or about
December 17, 1997, made the suggestion to Monica Lewinsky that
the submission of an affidavit in the case of Jones v. Clinton
might prevent her from having to testify:
A. I believe I probably asked him, you know, what should I
do in the course of that and he suggested, he said, ``Well,
maybe you can sign an affidavit.'' . . .
Q. When he said that you might sign an affidavit, what did
you understand it to mean at that time?
A. I thought that signing an affidavit could range from
anywhere--the point of it would be to deter or to prevent me
from being deposed and so that that could range from anywhere
between maybe just somehow mentioning, you know, innocuous
things or going as far as maybe having to deny any kind of
relationship.''
Grand Jury Testimony of Monica Lewinsky, 8/6/98, pp. 123-24, H.
Doc. 105-311, pp. 843-44.
Furthermore, Monica Lewinsky has stated that she is ``100%
sure that the President suggested that she might want to sign
an affidavit to avoid testifying.'' 8/19/98 OIC interview of
Monica Lewinsky, pp. 4-5, H. Doc. 105-311, pp. 1558-9.
f. The President lied in his deposition about his knowledge
of the service of a subpoena to a subordinate
federal employee to testify as a witness in the
federal civil rights action brought against him.
The record indicates that despite evidence revealing the
contrary, President Clinton swore in his deposition that Mr.
Jordan did not know if Monica Lewinsky had been subpoenaed to
testify in that case:
Q. Did she tell you she had been served with a subpoena in
this case?
A. No. I don't know if she had been.
Q. Did anyone other than your attorneys ever tell you that
Monica Lewinsky had been served with a subpoena in this case?
A. I don't think so.
Deposition Testimony of President Clinton in the case of Jones
v. Clinton, 1/18/98, p. 68.
``I said to the President, `Monica Lewinsky called me . . .
She is coming to see me about this subpoena.' '' Grand Jury
Testimony of Vernon Jordan, 5/5/98, p. 145 (referencing a
December 19, 1997, telephone conversation with the President),
H. Doc. 105-316, p. 1815.
The record indicates that the President knew, before his
deposition, that Monica Lewinsky had been subpoenaed in the
case of Jones v. Clinton. Monica Lewinsky was served with a
subpoena on December 19, 1997, a subpoena that commanded her to
appear for a deposition on January 23, 1998 and to produce
certain documents and gifts. Monica Lewinsky talked to Vernon
Jordan about it that day and Mr. Jordan spoke to the President
shortly thereafter. The President and Ms. Lewinsky met on
December 28th and discussed the subpoena.
g. The President lied in his deposition about his knowledge
of the final conversation he had with a subordinate
employee who was a witness in the federal civil
rights action brought against him.
When asked in the Jones Deposition about his last meeting
with Ms. Lewinsky, the President remembered only that she
stopped by ``probably sometime before Christmas'' and he
``stuck his head out [of the office], said hello to her.''
Deposition of President Clinton in the case of Jones v.
Clinton, 1/17/98, p. 68.
The President's answer was perjurious, false and
misleading. The evidence reveals that the President and Ms.
Lewinsky met for over 45 minutes on December 28, 1997. During
this meeting, they exchanged gifts and discussed the subpoena
that Ms. Lewinsky had received in the Jones case. In the
answers to the requests for admission, the President admitted
that he met with Ms. Lewinsky on December 28, 1997: ``When I
met with Ms. Lewinsky on December 28, 1997, I knew she was
planning to move to New York, and we discussed her move.''
Response to Request for Admission No. 22. He further
contradicts his deposition testimony and admits that he gave
her gifts on that crucial day. See Response to Request for
Admission No. 24.
h. The President lied in his deposition about his knowledge
that the contents of an affidavit executed by a
subordinate federal employee who was a witness in
the federal civil rights action brought against him
were false.
The record indicates that the President, under oath,
affirmed that the assertions made in Monica Lewinsky's
affidavit were true, even though he knew they were false.
During the January 17, 1998 deposition of President Clinton in
the case of Jones v. Clinton, Robert Bennett, the President's
attorney, read parts of the affidavit Monica Lewinsky had
executed in the case of Jones v. Clinton. At one point Mr.
Bennett read part of paragraph eight of Monica Lewinsky's
affidavit, in which Monica Lewinsky asserts, ``I have never had
a sexual relationship with the President, he did not propose
that we have a sexual relationship, he did not offer me
employment or other benefits in exchange for a sexual
relationship, he did not deny me employment or other benefits
for reflecting a sexual relationship.''
After reading from the affidavit out loud, Mr. Bennett
asked the President: ``Is that a true and accurate statement as
far as you know it?'' The President answered, ``That is
absolutely true.'' Deposition of President Clinton in the case
of Jones v. Clinton, 1/17/98, p. 204.
During the January 17, 1998 deposition of President Clinton
in the case of Jones v. Clinton, Robert Bennett, President
Clinton's attorney, stated ``Counsel is fully aware that Ms.
Jane Doe #6 has filed, has an affidavit which they are in
possession of saying that there is absolutely no sex of any
kind in any manner, shape or form, with President Clinton . .
.'' Deposition of President Clinton in the case of Jones v.
Clinton, 1/17/98, p. 54.
The Grand Jury Testimony of Monica Lewinsky, given under
oath and following a grant of transnational immunity, confirmed
that the contents of her affidavit were not true:
Q. Paragraph 8 . . . [of the affidavit] says, I have never
had a sexual relationship with the President. Is that true?
A. No.
Grand Jury Testimony of Monica Lewinsky, 8/6/98, p. 204, H.
Doc. 105-3 11, p. 924.
C. Article III--Obstruction of Justice
The following explanations for the individual paragraphs of
Article III clearly justify the conclusion that President
Clinton, using the powers of his high office, engaged
personally and through his subordinates and agents, in a course
of conduct or plan designed to delay, impede, cover up, and
conceal the existence of evidence and testimony related to the
duly instituted federal civil rights lawsuit of Jones v.
Clinton and the duly instituted investigation of Independent
Counsel Kenneth Starr.
Although, the actions of President Clinton do not have to
rise to the level of violating the federal statute regarding
obstruction of justice in order to justify impeachment, some if
not all of his actions clearly do. The general obstruction of
justice statute is 18 U.S.C. Sec. 1503. It provides in relevant
part: ``whoever . . . corruptly or by threats or force, or by
any threatening letter or communication, influences, obstructs,
or impedes, or endeavors to influence, obstruct, or impede, the
due administration of justice, shall be punished . . . '' In
short, Sec. 1503 applies to activities which obstruct, or are
intended to obstruct, the due administration of justice in both
civil and criminal proceedings.
To prove in a court of law that obstruction of justice had
occurred, three things have to be proved beyond a reasonable
doubt:
First, that there was a pending federal judicial
proceeding;
Second, that the defendant knew of the proceeding; and
Third, that the defendant acted corruptly with the
intent to obstruct or interfere with the proceeding or
due administration of justice.
1. The Committee concluded that on or about December 17, 1997, William
Jefferson Clinton corruptly encouraged a witness in a Federal
civil rights action brought against him to execute a sworn
affidavit in that proceeding that he knew to be perjurious,
false, and misleading.
On or about December 17, 1997, William Jefferson Clinton
corruptly encouraged a witness in a Federal civil rights action
brought against him to execute a sworn affidavit in that
proceeding that he knew to be perjurious, false, and
misleading.
President Clinton admitted that he spoke to Ms. Lewinsky
``before Christmas'' and that, while he was not ``sure'' if she
would be called to testify in the Paula Jones civil suit, she
might ``qualify, or something like that.'' Deposition Testimony
of President Clinton in the case of Jones v. Clinton, 1/17/98,
pp. 70-71. While the President has denied asking or encouraging
Ms. Lewinsky to lie by filing a false affidavit denying their
relationship, he concedes in his response to Question 18 of the
Committee's Requests for Admission that he told her that ``. .
. other witnesses had executed affidavits, and there was a
chance they would not have to testify.''
Monica Lewinsky was more emphatic on the subject in her
grand jury testimony. When she asked the President what she
should do if called to testify, he said, `` `Well, maybe you
can sign an affidavit.'' . . . [T]he point of it would be to
deter or to prevent me from being deposed and so that could
range anywhere between . . . just somehow mentioning . . .
innocuous things or going as far as maybe having to deny any
kind of relationship.'' Grand Jury Testimony of Monica
Lewinsky, 8/6/98, pp. 123-24, H. Doc. 105-311, pp. 843-44. She
further stated that she was ``100% sure that the President
suggested that she might want to sign an affidavit to avoid
testifying.'' 8/19/98 Office of Independent Counsel (OIC)
interview of Monica Lewinsky, pp. 4 H. Doc. 105-311, pp. 1558-
9.
Ms. Lewinsky also notes that the President never explicitly
instructed her to lie about the matter; rather, since the
President never told her to file an affidavit detailing the
true nature of their sexual relationship--which would only
invite humiliation and prove damaging to the President in the
Paula Jones case--she contextually understood that the
President wanted her to lie. See the OIC Referral, H. Doc. 105-
310, p. 174.
Furthermore, the attorneys for Paula Jones were seeking
evidence of sexual relationships the President may have had
with other state or federal employees. Such information is
often deemed relevant in sexual harassment lawsuits to help
prove the underlying claim of the Plaintiff and Judge Susan
Weber Wright ruled that Paula Jones was entitled to this
information for purposes of discovery. Consequently, when the
President encouraged Monica Lewinsky to file an affidavit, he
knew that it would have to be false for Ms. Lewinsky to avoid
testifying. If she filed a truthful affidavit, one
acknowledging a sexual relationship with the president, she
certainly would have been called as a deposition witness and
her subsequent truthful testimony would have been damaging to
the President both politically and legally.
2. The Committee concluded that on or about December 17, 1997, William
Jefferson Clinton corruptly encouraged a witness in a Federal
civil rights action brought against him to give perjurious,
false, and misleading testimony if and when called to testify
personally in that proceeding.
On or about December 17, 1997, William Jefferson Clinton
corruptly encouraged a witness in a Federal civil rights action
brought against him to give perjurious, false, and misleading
testimony if and when called to testify personally in that
proceeding.
Prior to December 17, 1997, the record demonstrates that
the President and Monica Lewinsky had discussed the use of
fabricated stories to conceal their relationship. The record
also reveals that the President revisited this same topic in a
telephone conversation with Monica Lewinsky on December 17,
1997; in fact, she was encouraged to repeat these fabrications
if called to testify in the Paula Jones case.
In his grand jury testimony as well as his response to the
Committee's Requests for Admission, the President claimed that
he had ``no specific memory'' of a conversation prior to
December 17, 1997, in which he suggested that Ms. Lewinsky
invoke cover stories to explain why she was alone with the
President. He conceded, however, that he ``. . . may have
talked about what to do in a non-legal context at some point in
the past, . . .[but that] . . . any such conversation was not
in connection with her status as a witness in the Jones v.
Clinton case.'' Grand Jury Testimony of President Clinton, 8/
17/98, H. Doc. 105-311, p. 569; Responses of President Clinton
to Question Nos. 13-15 in the Committee's Requests for
Admissions. President Clinton's testimony here is clearly
designed to be convenient; he has ``no specific memory'' of a
conversation with Ms. Lewinsky regarding cover stories, but if
the conversation did occur, he is certain it was in a ``non-
legal context.''
Ms. Lewinsky's testimony conflicts with that of the
President. In her grand jury testimony, she states that. . .
this is a kind of relationship that you keep quiet, and we both
wanted to be careful being in the White House. Whenever I would
visit him . . . unless it was some sort of chance meeting on
the weekend and then we ended up back in the office, we would
usually plan that I would either bring papers, or one time we
accidentally bumped into each other in the hall and went from
that way, so then we planned to do that again because that
seemed to work well. But . . . there was always some sort of a
cover. Grand Jury Testimony of Monica Lewinsky, 8/6/98, H. Doc.
105-311, p. 977.
Ms. Lewinsky admits further that delivering documents to
the President was a ruse that had no legitimate business
purpose. Id.
In addition, the President and Ms. Lewinsky developed a
second cover story by using Betty Currie as a source of
clearance to the White House for Ms. Lewinsky; in other words,
Ms. Lewinsky could claim she was visiting Ms. Currie, and not
the President. Id. The President has stated that he had ``no
knowledge'' of any ``White House record'' constructed for this
purpose. Deposition of President Clinton, 1/17/98, p. 54.
Consistent with these events, during a telephone
conversation with Monica Lewinsky on December 17, 1997, a
conversation in which the President informed Monica Lewinsky
that she was on the witness list in the case of Jones v.
Clinton, the President encouraged Ms. Lewinsky to invoke either
of these cover stories if called to testify in the Paula Jones
case. Ms. Lewinsky stated in her grand jury testimony that:
``[a]t some point in the conversation, and I don't know if it
was before or after the subject of the affidavit came up, he
sort of said, ``You know, you can always say you were coming to
see Betty or that you were bringing me letters.'' Which I
understood was really a reminder of things we had discussed
before.'' Grand Jury Testimony of Monica Lewinsky, 8/6/98, p.
123, H. Doc. 105-311, p. 843.
3. The Committee concluded that on or about December 28, 1997, William
Jefferson Clinton corruptly engaged in, encouraged, or
supported a scheme to conceal evidence that had been subpoenaed
in a Federal civil rights action brought against him.
On or about December 28, 1997, William Jefferson Clinton
corruptly engaged in, encouraged, or supported a scheme to
conceal evidence that had been subpoenaed in a Federal civil
rights action brought against him.
On December 19, 1997, Monica Lewinsky was served with a
subpoena in connection with the case of Jones v. Clinton. The
subpoena required her to testify at a deposition on January 23,
1998. The subpoena also required her to produce each and every
gift given to her by President Clinton. On the morning of
December 28, Ms. Lewinsky met with the President for about 45
minutes in the Oval Office. By this time, President Clinton
knew Ms. Lewinsky had been subpoenaed. At this meeting they
discussed the fact that the gifts had been subpoenaed,
including a hat pin, the first gift Clinton had given Lewinsky.
Monica Lewinsky testified that at some point in this meeting
she said to the President, ``Well, you know, I--maybe I should
put the gifts away outside my house somewhere or give them to
someone, maybe Betty. And he sort of said--I think he
responded, `I don't know' or `Let me think about that.' And
left that topic.'' Grand Jury Testimony of Monica Lewinsky, 8/
6/98, p. 152, H. Doc. 105-311, p. 872; See also 7/27/98 OIC
Interview of Monica Lewinsky, p. 7, H. Doc. 105-311, p. 1395.
Ms. Lewinsky also testified that both she and the President had
a specific concern about the hat pin being on the list; ``I
mentioned that I had been concerned about the hat pin being on
the subpoena and he said that had sort of concerned him also.''
Grand Jury Testimony of Monica Lewinsky, 8/6/98, p. 152, H.
Doc. 105-311, p. 872; see also 7/27/98 OIC Interview of Monica
Lewinsky, p. 7, H. Doc. 105-311, p. 1395.
President Clinton provided the following explanation to the
grand jury and this Committee regarding this conversation:
``Ms. Lewinsky said something to me like, ``what if they ask me
about the gifts you've given me,'' but I do not know whether
that conversation occurred on December 28, 1997, or earlier.
Whenever this conversation occurred, I testified, I told her
`that if they asked her for gifts, she'd have to give them
whatever she had. . . . ' I simply was not concerned about the
fact that I had given her gifts. Indeed, I gave her additional
gifts on December 28, 1997. I also told the grand jury that I
do not recall Ms. Lewinsky telling me that the subpoena
specifically called for a hat pin that I had given her.''
Request for Admission number 24; see also Grand Jury Testimony
of President Clinton, 8/17/98, H. Doc. 105-311, p. 495-98.
Ms. Lewinsky testified that she was never under the
impression from anything the President said that she should
turn over to Ms. Jones's attorneys all the gifts that he had
given her. Deposition of Monica Lewinsky, 8/26/98, p. 58, H.
Doc. 105-311, p. 1337.
Additionally, she said she can't answer why the President
would give her more gifts on the 28th when he knew she was
under an obligation to produce gifts in response to a subpoena.
She did testify, however, that, ``to me it was never a question
in my mind and I--from everything he said to me, I never
questioned him, that we were never going to do anything but
keep this private, so that meant deny it and that meant do--
take whatever appropriate steps needed to be taken, you know,
for that to happen. . . . So by turning over these gifts, it
would at least prompt [the Jones attorneys] to question me
about what kind of friendship I had with the President. . . .''
Grand Jury Testimony of Monica Lewinsky, 8/6/98, pp.166-67, H.
Doc. 105-311, pp. 886-87.
After this meeting on the morning of December 28th, Ms.
Currie called Monica Lewinsky and made arrangements to pick up
gifts the President had given to Ms. Lewinsky. Monica Lewinsky
testified under oath before the grand jury that a few hours
after meeting with the President on December 28, 1997, a
meeting in which Ms. Lewinsky and President Clinton discussed
the fact that gifts given to her by Mr. Clinton had been
subpoenaed in the case of Jones v. Clinton, Betty Currie called
her. The record indicates the following discussion occurred:
Q. What did [Betty Currie] say?
A. She said, ``I understand you have something to
give me.'' Or, ``The President said you have something
to give me.'' Along those lines. . . .
Q. When she said something along the lines of ``I
understand you have something to give me,'' or ``The
President says you have something for me,'' what did
you understand her to mean?
A. The gifts.
Grand Jury Testimony of Monica Lewinsky, 8/6/98, pp. 154-55, H.
Doc. 105-311, pp. 874.
Later in the day on December 28, Ms. Currie drove to Ms.
Lewinsky's home and Ms. Lewinsky gave her a sealed box that
contained several gifts Ms. Lewinsky had received from the
President, including the hat pin. Grand Jury Testimony of
Monica Lewinsky, 8/6/98, pp. 156-58, H. Doc. 105-311, pp. 875-
78. Ms. Currie testified that she understood the box contained
gifts from the President. She took the box home and put it
under her bed. Grand Jury Testimony of Betty Currie, 5/6/98,
pp. 107-8, H. Doc. 105-316, p. 581. In Monica Lewinsky's
February 1, 1998 handwritten statement to the OIC, which Ms.
Lewinsky has testified is truthful, she stated, ``Ms. Currie
called Ms. L later that afternoon and said that the Pres. had
told her Ms. L wanted her to hold onto something for her. Ms. L
boxed up most of the gifts she had received and gave them to
Ms. Currie.'' 2/1/98 Handwritten Proffer of Monica Lewinsky, p.
7, H. Doc. 105-311, p. 715.
Betty Currie testified that she did not recall the
President telling her that Ms. Lewinsky wanted her to retrieve
and hold some items; that Ms. Lewinsky called her and asked her
to come get the gifts. Grand Jury Testimony of Betty Currie, 5/
6/98, pp. 105-6, H. Doc. 105-316, p. 581. When asked if a
contrary statement by Ms. Lewinsky--indicating that Ms. Currie
had in fact spoken to the President about the gift transfer--
would be false, Ms. Currie replied: ``She may remember better
than I. I don't remember.'' Grand Jury Testimony of Betty
Currie, 5/6/98, p. 126, H. Doc. 105-316, p. 584.
Further evidence before the Committee reveals that Betty
Currie telephoned Monica Lewinsky regarding the gifts, and not
the other way around:
Mr. Schippers: When Ms. Currie, when they wanted to
get rid of the gifts, Ms. Currie went and picked them
up, put them under her bed to keep them from anybody
else. Another mission accomplished?
Mr. Starr: That's right.
Mr. Schippers: By the way, there has been some talk
here that Monica said that she recalled that Betty
Currie called her and said, either the President wants
me to pick something up, or I understand you have
something for me to pick up. Later, Ms. Currie backed
off that and said, well, I am not sure, maybe Monica
called me. In the material that you made available, you
and your staff made available to us, there were 302s in
which Monica said, I think when Betty called me, she
was using her cell phone. Do you recall that, Judge
Starr?
Mr. Starr: I do.
Mr. Schippers: And in that same material that is in
your office that both parties were able to review and
that we did, in fact, review, there are phone records
of Ms. Currie; are there not?
Mr. Starr: There are.
Mr. Schippers: And there is a telephone call on her
cell phone to Monica Lewinsky's home on the afternoon
of December 28, 1997; isn't there?
Mr. Starr: That is correct.
Mr. Schippers: Once again, Monica is right and she
has been corroborated, right?
Mr. Starr: That certainly tends to corroborate Ms.
Lewinsky's recollection.
Impeachment Hearing on Inquiry Pursuant to H. Res. 581,
Thursday, November 19, 1998, Transcript pp. 407-409.
President Clinton testified before the grand jury, and
reiterated to this Committee (Request for Admission Number 26)
that he did not recall any conversation with Ms. Currie on or
about December 28, 1997, about gifts previously given to Ms.
Lewinsky and that he never told Ms. Currie to take possession
of gifts he had given Ms. Lewinsky. Grand Jury Testimony of
President Clinton, 8/17/98, p. 50, H. Doc. 105-311, p. 502; see
also Id. at 113-114, H. Doc. 105-311 at 565-66. The Committee
believes this answer is false because the evidence reveals that
Betty Currie did call Monica Lewinsky about the gifts and there
is no reason for her to do so unless instructed by the
President. Because she did not personally know of the gift
issue, there is no other way Ms. Currie could have known to
call Ms. Lewinsky about the gifts unless the President told her
to do so. The President had a motive to conceal the gifts
because both he and Ms. Lewinsky were concerned that the gifts
might raise questions about their relationship. By confirming
that the gifts would not be produced, the President ensured
that these questions would not arise. The concealment and non-
production of the gifts to the attorneys for Paula Jones,
allowed the President to provide false and misleading
statements about the gifts at his deposition in the case of
Jones v. Clinton. Additionally, Ms. Lewinsky's testimony on
this subject has been consistent and unequivocal; she recited
the same facts in February, July and August.
4. The Committee concluded that beginning on or about December 7, 1997,
and continuing through and including January 14, 1998, William
Jefferson Clinton intensified and succeeded in an effort to
secure job assistance for a witness in a Federal civil rights
action brought against him in order to corruptly prevent the
truthful testimony of that witness in that proceeding at a time
when the truthful testimony of that witness would have been
harmful to him
Beginning on or about December 7, 1997, and continuing
through and including January 14, 1998, William Jefferson
Clinton intensified and succeeded in an effort to secure job
assistance for a witness in a Federal civil rights action
brought against him in order to corruptly prevent the truthful
testimony of that witness in that proceeding at a time when the
truthful testimony of that witness would have been harmful to
him.
Although Monica Lewinsky discussed jobs in New York with
the President in October, interviewed with Bill Richardson in
October and met with Vernon Jordan regarding her move to New
York on November 5, 1997, the effort to obtain a job for Monica
Lewinsky in New York intensified after the President learned,
on December 6, 1997, that Monica Lewinsky was listed on the
witness list for the case of Jones v. Clinton.
On December 7, 1997, President Clinton met with Vernon
Jordan at the White House. Ms. Lewinsky met with Mr. Jordan on
December 11 to discuss specific job contacts in New York.
Jordan then made calls to certain New York companies on Ms.
Lewinsky's behalf. Jordan telephoned President Clinton to keep
him informed of the efforts to get Ms. Lewinsky a job. Grand
Jury Testimony of Vernon Jordan, 3/3/98, pp. 64-66, H. Doc.
105-316, pp. 1710-11.
On December 11, Judge Wright ordered President Clinton to
answer interrogatories, including whether he has engaged in
sexual relations with any government employees. On December 16,
the President's attorneys received a request for production of
documents that mentioned Monica Lewinsky by name. On December
18 and 23, Monica Lewinsky interviewed with New York based
companies that had been contacted by Vernon Jordan. On December
19, Monica Lewinsky was served with a deposition subpoena in
the case of Jones v. Clinton. On December 22, Vernon Jordan
took Monica Lewinsky to see her new attorney, Frank Carter, who
had been recommended by Vernon Jordan. During the car ride to
Mr. Carter's office, Monica Lewinsky and Vernon Jordan
discussed the subpoena, the case of Jones v. Clinton, and her
job search. Grand Jury Testimony of Monica Lewinsky, 8/6/98, p.
138-42, H. Doc. 105-311, pp. 997-98; see also Grand Jury
Testimony of Vernon Jordan, 3/3/98, p.183-85, H. Doc. 105-316,
p. 1730.
On December 28, 1997, the President had a discussion with
Monica Lewinsky at the White House in which they discussed
Monica Lewinsky's involvement in the case of Jones v. Clinton
and her plan to move to New York. Ms. Lewinsky recalled that
President Clinton suggested to her that she move to New York
soon because by moving to New York, the lawyers representing
Paula Jones in the case of Jones v. Clinton may not contact
her. The following statement was recorded by an OIC
investigator after interviewing Monica Lewinsky:
``On December 28, 1997, Lewinsky visited the President at
the White House . . . the President said that if Lewinsky was
in New York the Jones lawyers might not call; that the sooner
Lewinsky moved the better; and that maybe the lawyers would
ignore her.'' 7/27/98 OIC Interview of Monica Lewinsky, p. 7,
H. Doc. 105-311, p. 1395.
The President stated to the Committee he did not suggest
that Monica Lewinsky could avoid testifying in the Jones v.
Clinton case by moving to New York. See Request for Admission
number 23.
On January 5, Monica Lewinsky had a telephone conversation
with the President in which they discussed the signing of an
affidavit in the case of Jones v. Clinton. Grand Jury Testimony
of Monica Lewinsky, 8/6/98, pp. 191-98, H. Doc 105-311, pp.
1010-12. On January 7, 1998, Monica Lewinsky signed an
affidavit to be filed in the case of Jones v. Clinton in which
she denied having a sexual relationship with President Clinton.
On or about January 7, 1998, the President had a discussion
with Vernon Jordan in which Mr. Jordan mentioned that he was
assisting Monica Lewinsky in finding a job in New York. Mr.
Jordan made the following statement before the grand jury:
``I'm sure I said, `I'm still working on her job [in New
York]'.'' To which Jordan quotes the President as responding,
``Good.'' Grand Jury Testimony of Vernon Jordan, 5/5/98, p.
225-26, H. Doc. 105-316, p. 1828-29. President Clinton
acknowledges that he was aware that Mr. Jordan was assisting
Ms. Lewinsky in her job search in connection with her move to
New York. See Request for Admission number 31.
On January 8, 1998, Monica Lewinsky interviewed in New York
with MacAndrews and Forbes, a company recommended by Vernon
Jordan. Ms . Lewinsky informed Mr. Jordan that the interview
did not go well, so he called the Chairman of the Board and
Chief Executive Officer at MacAndrews and Forbes. Ms. Lewinsky
was given a second interview with MacAndrews and Forbes on the
morning of January 9, 1998, and she was given an informal job
offer that she informally accepted on the afternoon of January
9th. Ms. Lewinsky conveyed the news of the job offer to Vernon
Jordan. Grand Jury Testimony of Monica Lewinsky, 8/6/98, pp.
206-210, H. Doc. 105-311, pp. 1014-15; Grand Jury Testimony of
Vernon Jordan, 5/5/98, p. 229-31, H. Doc. 105-316, p. 1829. On
or about January 9, 1998, the President received a message from
Vernon Jordan indicating that Monica Lewinsky had received a
job offer in New York. Sometime shortly thereafter, Vernon
Jordan had a conversation with the President, during which
Vernon Jordan testified that he told the President, ``Monica
Lewinsky's going to work for Revlon and his response was thank
you very much.'' Grand Jury Testimony of Vernon Jordan, 5/28/
98, p. 59, H. Doc. 105-316, p. 1903. The President acknowledges
that he was informed that Monica Lewinsky had received a job
offer in New York, but cannot recall who told him or when he
first learned of the job offer. See Request for Admission
number 37.
On January 13, 1998, Monica Lewinsky received a formalized
job offer from Revlon (a MacAndrews and Forbes company) and was
asked to provide references. The evidence shows that President
Clinton, after learning of Monica Lewinsky's New York job
offer, asked Erskine Bowles if he would ask John Hilley to give
Ms. Lewinsky a job recommendation. Mr. Bowles testified that
the President told him that ``[Monica Lewinsky] had found a job
in the private sector, and that she had listed John Hilley as a
reference, and could we see if he could recommend her, if
asked.'' Grand Jury Testimony of Erskine Bowles, 4/2/98, p. 78,
H. Doc. 105-316, p. 238.
It is logical to infer from this chain of events that the
efforts of the President and others at the President's
direction to obtain a job in New York for Monica Lewinsky were
motivated to influence the testimony of a potential witness in
the case of Jones v. Clinton, if not to prevent her testimony
outright. The job search for Monica Lewinsky was intensified in
late 1997, when it became likely that Monica Lewinsky would be
asked to provide testimony in the case of Jones v. Clinton and
her truthful testimony would be harmful to the President.
5. The Committee concluded that on January 17, 1998, at his deposition
in a Federal civil rights action brought against him, William
Jefferson Clinton corruptly allowed his attorney to make false
and misleading statements to a Federal judge characterizing an
affidavit, in order to prevent questioning deemed relevant by
the judge. Such false and misleading statements were
subsequently acknowledged by his attorney in a communication to
that judge
On January 17, 1998, at his deposition in a Federal civil
rights action brought against him, William Jefferson Clinton
corruptly allowed his attorney to make false and misleading
statements to a Federal judge characterizing an affidavit, in
order to prevent questioning deemed relevant by the judge. Such
false and misleading statements were subsequently acknowledged
by his attorney in a communication to that judge.
On January 15, 1998, Robert Bennett, attorney for President
Clinton in the case of Jones v. Clinton, obtained a copy of the
affidavit Monica Lewinsky filed in an attempt to avoid having
to testify in the case of Jones v. Clinton. Grand Jury
Testimony of Frank Carter, 6/18/98, pp.112-13, H. Doc. 105-316,
pp. 420-21. In this affidavit, Monica Lewinsky asserted that
she had never had a sexual relationship with President Clinton.
At the President's deposition on January 17, 1998, an attorney
for Paula Jones began to ask the President questions about his
relationship with Ms. Lewinsky. Mr. Bennett objected to the
``innuendo'' of the questions and he pointed out that she had
signed an affidavit denying a sexual relationship with the
President. Mr. Bennett asserted that this indicated ``there is
no sex of any kind in any manner, shape or form,'' and after a
warning from Judge Wright he stated that, ``I am not coaching
the witness. In preparation of the witness for this deposition,
the witness is fully aware of Ms. Jane Doe 6's affidavit, so I
have not told him a single thing he doesn't know.'' Mr. Bennett
clearly used the affidavit in an attempt to stop the
questioning of the President about Ms. Lewinsky. The President
did not say anything to correct Mr. Bennett even though he knew
the affidavit was false. Judge Wright overruled Mr. Bennett's
objection and allowed the questioning to proceed. Deposition of
President Clinton in the case of Jones v. Clinton, 1/17/98, p.
54. Later in the deposition, Mr. Bennett read the President the
portion of Ms. Lewinsky's affidavit in which she denied having
a ``sexual relationship'' with the President and asked the
President if Ms. Lewinsky's statement was true and accurate.
The President responded: ``That is absolutely true.''
Deposition of President Clinton in the case of Jones v.
Clinton, 1/17/98, p. 204. The Grand Jury Testimony of Monica
Lewinsky, given under oath and following a grant of
transnational immunity, confirmed that the contents of her
affidavit were not true:
Q. Paragraph 8 . . . [of the affidavit] says, ``I
have never had a sexual relationship with the
President.'' Is that true?
A. No.
Grand Jury Testimony of Monica Lewinsky, 8/6/98, H. Doc. 105-
311, p. 924.
When President Clinton was asked during his grand jury
testimony how he could have lawfully sat silent at his
deposition while his attorney made a false statement (``there
is no sex of any kind, in any manner shape or form'') to a
United States District Court Judge, the President first said
that he was not paying ``a great deal of attention'' to Mr.
Bennett when he said this. The President also stated that ``I
didn't pay any attention to this colloquy that went on.'' The
videotaped deposition shows the President looking in Mr.
Bennett's direction while Mr. Bennett was making the statement
about no sex of any kind. The President then argued that when
Mr. Bennett made the assertion that there ``is no sex of any
kind . . .,'' Mr. Bennett was speaking only in the present
tense. The President stated, ``It depends on what the meaning
of the word `is' is,'' and that ``if it means there is none,
that was a completely true statement.'' Grand Jury Testimony of
President Clinton, 8/17/98, pp. 57-61, H. Doc. 105-311, pp.
509-513; see also id., pp. 24-25, H. Doc. 105-311, pp. 476-77.
President Clinton's suggestion that he might have engaged in
such a parsing of the words at his deposition is at odds with
his assertion that the whole argument just passed him by.
6. The Committee concluded that on or about January 18 and January 20-
21, 1998, William Jefferson Clinton related a false and
misleading account of events relevant to a Federal civil rights
action brought against him to a potential witness in that
proceeding, in order to corruptly influence the testimony of
that witness
On or about January 18 and January 20-21, 1998, William
Jefferson Clinton related a false and misleading account of
events relevant to a Federal civil rights action brought
against him to a potential witness in that proceeding, in order
to corruptly influence the testimony of that witness.
The record reflects that President Clinton attempted to
influence the testimony of Betty Currie, his personal
secretary, by coaching her to recite inaccurate answers to
possible questions that might be asked of her if called to
testify in the case of Jones v. Clinton. The President did this
shortly after he had been deposed in the case. In his
deposition, when asked about whether it would be extraordinary
for Betty Currie to be in the White House between midnight and
six a.m., the President answered in part, ``those are questions
you'd have to ask her.'' Deposition of President Clinton in the
case of Jones v. Clinton, page 21 of the publicly released
document. Furthermore, he invokes Betty Currie's name numerous
times throughout the deposition, oftentimes asserting that
Monica was around to see Betty and that Betty talked about
Vernon Jordan helping Ms. Lewinsky and Betty talked with Ms.
Lewinsky about her move to New York. After mentioning Betty
Currie so often in answers to questions during his deposition,
it was very logical for the President to assume that the Jones
Lawyers may call her as a witness. That is why the President
called her about two hours after the completion of his
deposition and asked her to come in to the office the next day,
which was a Sunday. See Request for Admission number 47.
In his grand jury testimony and responses to the
Committee's Requests for Admission, the President was
occasionally evasive and vague on this point. He stated that on
January 18, 1998, he met with Ms. Currie and ``. . . asked her
certain questions, in an effort to get as much information as
quickly as I could and made certain statements, although I do
not remember exactly what I said.'' Grand Jury Testimony of
President Clinton, 8/17/98, H. Doc. 105-311, p. 508; Response
of President Clinton to Question No. 52 of the Committee's
Requests for Admission. The President added that he urged Ms.
Currie to ``tell the truth'' after learning that the Office of
Independent Counsel (OIC) might subpoena her to testify. Id. at
p. 591.
The President also stated that he could not recall how many
times he had talked to Ms. Currie or when, in response to OIC
questioning on the subject of a similar meeting that took place
on or about January 20 or 21, 1998. He claimed that by asking
questions of Ms. Currie he was only attempting to ``. . .
ascertain what the facts were, trying to ascertain what Betty's
perception was.'' Grand Jury Testimony of President Clinton, 8/
17/98, H. Doc. 105-311, pp. 592-93; Response of President
Clinton to Question No. 53 of the Committee's Requests for
Admission.
While testifying before the grand jury, Ms. Currie was more
precise in her recollection of the two meetings. An OIC
attorney asked her if the President had made a series of
leading statements or questions that were similar to the
following:
1. You were always there when she [Monica Lewinsky]
was there, right? We were never really alone.
2. You could see and hear everything.
3. Monica came on to me, and I never touched her,
right?
4. She wanted to have sex with me and I couldn't do
that.
Question No. 53, Committee's Requests for Admission; OIC
Referral, H. Doc. 105-310, p. 191.
In her testimony Ms. Currie indicated that the President's
remarks were ``more like statements than questions.'' Based on
his demeanor and the manner in which he asked the questions,
she concluded that the President wanted her to agree with him.
Ms. Currie thought that the President was attempting to gauge
her reaction, and appeared concerned. OIC Referral, H. Doc.
105-310, pp. 191-92; Grand Jury Testimony of Betty Currie, 1/
27/98, pp. 71-76, H. Doc. 105-316, pp. 559-60.
Ms. Currie also acknowledged that while she indicated to
the President that she agreed with him, in fact she knew that,
at times, he was alone with Ms. Lewinsky and that she could not
or did not hear or see the two of them while they were alone.
Id.
As to their subsequent meeting on January 20 or 21, 1998,
Ms. Currie stated that ``. . . it was sort of a recapitulation
of what we had talked about on Sunday [January 18, 1998] . .
.'' Grand Jury Testimony of Betty Currie, 1/27/98, p. 81, H.
Doc. 105-316, p. 561.
The President's response that he was trying to ascertain
what the facts were or trying to ascertain what Betty's
perception was is simply not credible in light of the fact that
3 of the 4 statements he made to Ms. Currie were clearly false.
This is further evidence that he was trying to influence the
testimony of a potential witness. Why would the President be
trying to get information from her about false statements or
refresh his recollection concerning falsehoods?
7. The Committee concluded that on or about January 21, 23, and 26,
1998, William Jefferson Clinton made false and misleading
statements to potential witnesses in a Federal grand jury
proceeding in order to corruptly influence the testimony of
those witnesses. The false and misleading statements made by
William Jefferson Clinton were repeated by the witnesses to the
grand jury, causing the grand jury to receive false and
misleading information
On or about January 21, 23, and 26, 1998, William Jefferson
Clinton made false and misleading statements to potential
witnesses in a Federal grand jury proceeding in order to
corruptly influence the testimony of those witnesses. The false
and misleading statements made by William Jefferson Clinton
were repeated by the witnesses to the grand jury, causing the
grand jury to receive false and misleading information.
The record reflects that on the dates in question President
Clinton met with a total of five aides who would later be
called to testify before the grand jury. The meetings took
place shortly after the President's deposition in the Paula
Jones case and following a Washington Post story, published on
January 21, 1998, which detailed the relationship between the
President and Monica Lewinsky. During the meetings the
President made false and misleading statements to his aides
which he knew would be repeated once they were called to
testify.
The President submitted the same response to each of seven
questions (Nos. 62-68) relating to this topic as set forth in
the Committee's Requests for Admission. The President answered
by stating that ``. . . I did not want my family friends, or
colleagues to know the full nature of my relationship with Ms.
Lewinsky. In the days following the January 21, 1998,
Washington Post article, I misled people about this
relationship. I have repeatedly apologized for doing so.''
Response of President Clinton to Question Nos. 62-68 of the
Committee's Requests for Admission.
The President's public ``apology'' occurred on August 17,
1998, during a nationally-televised broadcast in which he
confessed having made ``misleading'' statements about the
nature of his relationship with Monica Lewinsky. It should be
noted, however, that the ``apology'' was delivered after August
3, 1998, the date on which a White House physician drew a blood
sample from the President for DNA testing by the Federal Bureau
of Investigation (FBI). The President therefore knew that,
potentially, the sample might be matched with semen that may
have been preserved on an article of clothing or some other
item belonging to Ms. Lewinsky. This, in fact, occurred on
August 17, 1998, when the FBI released its DNA report that
linked the President (based on his blood sample) to a semen
stain on one of Ms. Lewinsky's dresses. OIC Referral, H. Doc.
105-310, p. 136, n. 42 and p. 138, pp. 51 and 52.
According to the aides who met with the President on the
days in question, he insisted unequivocally that he had not
indulged in a sexual relationship with Ms. Lewinsky or
otherwise done anything inappropriate. On January 21, 1998, in
a conversation with Sydney Blumenthal, one of his Assistants,
the President said that he rebuffed Monica Lewinsky after she
`` `. . . came at me and made a sexual demand on me.' '' The
President also told Mr. Blumenthal, `` `I haven't done anything
wrong.' '' Grand Jury Testimony of Sydney Blumenthal, 6/4/98,
p. 49, H. Doc. 105-316, p. 185.
Also on January 21, 1998, the President met with Erskine
Bowles, his Chief of Staff, and two of Mr. Bowles' Deputies,
Sylvia Matthews and John Podesta. The President began the
meeting by telling Mr. Bowles that the Washington Post story
was not true. (Grand Jury Testimony of John Podesta, 6/16/98,
p. 85, H. Doc. 105-316, p. 3310). He said that he had not had a
sexual relationship with her, and had not asked anyone to lie.
Id.; Grand Jury Testimony of Erskine Bowles, 4/2/98, pp. 83-4,
H. Doc. 105-316, p. 239.
Two days later (January 23, 1998), as he was preparing for
his State of the Union address, the President engaged Mr.
Podesta in another conversation in which he ``. . . was
extremely explicit in saying he never had sex with her.'' When
the OIC attorney asked for greater specificity, Mr. Podesta
stated that the President said he had not had oral sex with Ms.
Lewinsky, and in fact was ``. . . denying any sex in any way,
shape or form . . ..'' Grand Jury Testimony of John Podesta, 6/
16/98, pp. 91-3, H. Doc. 105-316, p. 3311. The President also
explained that Ms. Lewinsky's frequent visits to the White
House were nothing more than efforts to visit Betty Currie. Ms.
Currie was either with the President and Ms. Lewinsky during
these ``visits,'' or she was seated at her desk outside the
Oval Office with the door open. Id., p. 3310.
Finally, on January 26, 1998, the President met with Harold
Ickes, another Deputy Chief of Staff to Mr. Bowles. At the
time, the President said that he had not had a sexual
relationship with Ms. Lewinsky, had not obstructed justice in
the matter, and had not instructed anyone to lie or obstruct
justice. Grand Jury Testimony of Harold Ickes, 6/10/98, pp. 21,
73, H. Doc. 105-316, pp. 1487, 1539.
By his own admission more than seven months later, the
President said that he had told a number of his aides that he
did not ``. . . have an affair with [Ms. Lewinsky] or . . .
have sex with her.'' He also admitted that he knew that these
aides might be called before the grand jury as witnesses. Grand
Jury Testimony of President Clinton, 8/17/98, pp. 105-07, H.
Doc. 105-311, p. 647.
D. Article IV--Abuse of Power
1. The President abused his power by refusing and failing to respond to
certain written requests for admission and willfully made
perjurious, false, and misleading sworn statements in response
to certain written requests for admission propounded to him by
the Committee
Using the powers and influence of the office of President
of the United States, William Jefferson Clinton, in violation
of his constitutional oath faithfully to execute the office of
President of the United States and, to the best of his ability,
preserve, protect, and defend the Constitution of the United
States, and in disregard of his constitutional duty to take
care that the laws be faithfully executed, has engaged in
conduct that resulted in misuse and abuse of his high office,
impaired the due and proper administration of justice and the
conduct of lawful inquiries, and contravened the authority of
the legislative branch and the truth seeking purpose of a
coordinate investigative proceeding, in that, as President,
William Jefferson Clinton refused and failed to respond to
certain written requests for admission and willfully made
perjurious, false and misleading sworn statements in response
to certain written requests for admissions propounded to him as
part of the impeachment inquiry authorized by the House of
Representatives of the Congress of the United States. William
Jefferson Clinton, in refusing and failing to respond and in
making perjurious, false and misleading statements, assumed to
himself functions and judgments necessary to the exercise of
the sole power of impeachment vested by the Constitution in the
House of Representatives and exhibited contempt for the
inquiry.
On November 5, 1998, the Committee presented President
Clinton with 81 requests for admission. The requests were made
in order to allow the President to candidly dispute or affirm
key sworn evidence before the Committee by admitting or denying
certain facts. The President responded to the requests on
November 27, 1998. After a thorough review of the President's
answers, the Committee concluded that several of the
President's answers to the 81 questions asked of him by the
Committee are clearly perjurious, false, and misleading. In
responding in such a manner, the President exhibited contempt
for the constitutional prerogative of Congress to conduct an
impeachment inquiry. The impeachment duty is a solemn one
vested exclusively in the House of Representatives as a check
and balance on the President and the Judiciary. The Committee
reached the unfortunate conclusion that the President, by
giving perjurious, false, and misleading answers under oath to
the Committee's requests for admission, chose to take steps to
thwart this serious constitutional process.
A further intention of the Committee in propounding these
questions to the President was to expedite the impeachment
inquiry and offer the President an opportunity to provide
exculpatory evidence to the Committee. Unfortunately, the
President chose to perpetuate the lying he began at his
deposition last January and the lying and legal hairsplitting
he engaged in during his grand jury testimony in August. His
answers are a continuation of a pattern of deceit and
obstruction of duly authorized investigations.
Article IV states the matter quite succinctly, ``William
Jefferson Clinton, in refusing and failing to respond and in
making perjurious, false and misleading statements, assumed to
himself functions and judgments necessary to the exercise of
the sole power of impeachment vested by the Constitution in the
House of Representatives and exhibited contempt for the
inquiry.''
Several instances of perjurious, false, and misleading
statements that President Clinton provided in his answers to
the 81 requests for admission propounded by this Committee are
set forth below:
a. Request for Admission, Number 19
Q. Do you admit or deny that on or about December 17,
1997, you suggested to Monica Lewinsky that she could
say to anyone inquiring about her relationship with you
that her visits to the Oval Office were for the purpose
of visiting with Betty Currie or to deliver papers to
you?
A. I was asked essentially these same questions by
OIC lawyers. I testified that Ms. Lewinsky and I ``may
have talked about what to do in a non-legal context at
some point in the past, but I have no specific memory
of that conversation.'' App. At 569. That continues to
be my recollection today--that is, any such
conversation was not in connection with her status as a
witness in the Jones v. Clinton case.
By December 17, 1997, the President knew Ms. Lewinsky was
on the witness list in the case of Jones v. Clinton. The
President reiterated to this Committee his grand jury testimony
that he ``may have talked about what to do in a non-legal
context at some point in the past, but I have no specific
memory of that conversation.'' Grand Jury Testimony of
President Clinton, 8/17/98, H. Doc. 105-311, p. 569. The
President goes on to tell the Committee that ``that continues
to be my recollection today--that is, any such conversation was
not in connection with her status as a witness . . .''
Monica Lewinsky testified before the grand jury that the
President did suggest, during a phone conversation resulting
from a call from the President in the middle of the night on
December 17, using these cover stories if she was called as a
witness. Grand Jury testimony of Monica Lewinsky, 8/6/98, p.
123, H. Doc. 105-311, p. 843. This was a reiteration of stories
they had concocted and ruses they had implemented long before
December 17, 1997, as part of their plan to try to keep their
relationship secret. Ms. Lewinsky's recollection has been clear
and consistent regarding this phone conversation, as it has
been on many other subjects. Furthermore, it is odd that the
President has ``no specific memory'' of a conversation with Ms.
Lewinsky regarding cover stories, but if the conversation did
occur, he is certain it was in a ``non-legal context.''
b. Request for Admission, Number 20
Q. Do you admit or deny that you gave false and
misleading testimony under oath when you stated during
your deposition in the case of Jones v. Clinton on
January 17, 1998, that you did not know if Monica
Lewinsky had been subpoenaed to testify in that case?
A. It's evident from my testimony on pages 69 to 70
of the deposition that I did know on January 17, 1998,
that Ms. Lewinsky had been subpoenaed in the Jones v.
Clinton case. Ms. Jones' lawyer's question, ``did you
talk to Mr. Lindsey about what action, if any, should
be taken as a result of her being served with a
subpoena?'', and my response, ``No,'' id. at 70,
reflected my understanding that Ms. Lewinsky had been
subpoenaed. That testimony was not false and
misleading.
The President argued that it is evident from his testimony
in that deposition that he did know that Ms. Lewinsky had been
subpoenaed and his answers exhibit this knowledge. He makes
this assertion despite the fact that during his deposition in
the case of Jones v. Clinton, he responded ``No. I don't know
if she had been.'' when asked the question, ``Did she tell you
she had been served with a subpoena in this case?'' Deposition
Testimony of President Clinton, 1/17/98 in the case of Jones v.
Clinton. His subsequent attempts to deny this denial are
unreasonable and are still inconsistent with the fact that he
actually had discussed the subpoena with Monica Lewinsky on
December 28, 1997.
c. Request for Admission, Number 24
Q. Do you admit or deny that on or about December 28,
1997, you had a discussion with Monica Lewinsky at the
White House regarding gifts you had given to Ms.
Lewinsky that were subpoenaed in the case of Jones v.
Clinton?
A. As I told the grand jury, ``Ms. Lewinsky said
something to me like, what if they ask me about the
gifts you've given me,'' App. At 495, but I do not know
whether that conversation occurred on December 28,
1997, or earlier. Ibid. Whenever this conversation
occurred, I testified, I told her ``that if they asked
her for gifts, she'd have to give them whatever she
had. . . . '' App. At 495. I simply was not concerned
about the fact that I had given her gifts. See App. At
495-98. Indeed, I gave her additional gifts on December
28, 1997. I also told the grand jury that I do not
recall Ms. Lewinsky telling me that the subpoena
specifically called for a hat pin that I had given her.
App. At 496.
In his response to Request for Admission number 24, the
President reiterated his grand jury testimony that when he
talked to Ms. Lewinsky about subpoenaed gifts he told her
``that if they asked her for gifts, she'd have to give them
whatever she had.'' The President's statement that he told Ms.
Lewinsky that if the attorneys for Paula Jones asked for the
gifts she had to provide them is false and misleading. It
simply strains logic to believe the President would encourage
Monica Lewinsky to turn over the gifts. To do so would have
raised questions about their relationship and would have been
contrary to all of their other efforts to conceal the
relationship, including a discussion about filing an affidavit
denying a sexual relationship.
d. Request for Admission, Number 26
Q. Do you admit or deny that on or about December 28,
1997, you discussed with Betty Currie gifts previously
given by you to Monica Lewinsky?
A. I do not recall any conversation with Ms. Currie
on or about December 28, 1997, about gifts I had
previously given to Ms. Lewinsky. I never told Ms.
Currie to take possession of gifts I had given Ms.
Lewinsky; I understand Ms. Currie has stated that Ms.
Lewinsky called Ms. Currie to ask her to hold a box.
See Supp. At 531.
In his response to Request for Admission number 26, the
President denies any conversation with Betty Currie regarding
gifts. President Clinton testified before the grand jury, and
reiterates to this Committee that he did not recall any
conversation with Ms. Currie on or about December 28, 1997,
about gifts previously given to Ms. Lewinsky and that he never
told Ms. Currie to take possession of gifts he had given Ms.
Lewinsky. Grand Jury Testimony of President Clinton, 8/17/98,
p. 50, H. Doc. 105-311, pp. 565-66. This answer is false and
misleading because the evidence reveals that Betty Currie did
call Monica Lewinsky about the gifts and there was no reason
for her to do so unless she was told to do so by the President.
Because she did not personally know of the gifts, there is no
other way Ms. Currie could have known to call Ms. Lewinsky
about the gifts unless the President told her to do so. The
President had a motive to conceal the gifts because both he and
Ms. Lewinsky were concerned that the gifts might raise
questions about their relationship. By confirming that the
gifts would not be produced, the President ensured that these
questions would not arise. The concealment and non-production
of the gifts to the attorneys for Paula Jones allowed the
President to provide false and misleading statements about the
gifts at his deposition in the case of Jones v. Clinton. Ms.
Lewinsky's testimony on this subject has been consistent and
unequivocal, she provided the same facts in February, July and
August, 1998. Additionally, the cellular phone records of Betty
Currie indicate that Betty Currie called Monica Lewinsky on the
afternoon of December 28, 1997.
e. Request for Admission, Number 27
Q. Do you admit or deny that on or about December 28,
1998 [sic], you requested, instructed, suggested to or
otherwise discussed with Betty Currie that she take
possession of gifts previously given to Monica Lewinsky
by you?
A. I do not recall any conversation with Ms. Currie
on or about December 28, 1997, about gifts I had
previously given to Ms. Lewinsky. I never told Ms.
Currie to take possession of gifts I had given Ms.
Lewinsky; I understand Ms. Currie has stated that Ms.
Lewinsky called Ms. Currie to ask her to hold a box.
See Supp. At 531.
Based on the facts set forth in the Committee's explanation
of Request for Admission number 26, the President's response to
Request for Admission number 27 is also perjurious, false and
misleading.
f. Request for Admission, Number 34
Q. Do you admit or deny that you had knowledge that
any facts or assertions contained in the affidavit
executed by Monica Lewinsky on January 7, 1998, in the
case of Jones v. Clinton were not true?
A. I was asked at my deposition in January about two
paragraphs of Ms. Lewinsky's affidavit. With respect to
Paragraph 6, I explained the extent to which I was able
to attest to its accuracy. Dep. at 202-03.
With respect to Paragraph 8, I stated in my
deposition that it was true. Dep. at 204. In my August
17th grand jury testimony, I sought to explain the
basis for that deposition answer: ``I believe at the
time that she filled out this affidavit, if she
believed that the definition of sexual relationship was
two people having intercourse, then this is accurate.''
App. At 473.
In the affidavit in question, Monica Lewinsky asserted that
she had never had a sexual relationship with President Clinton.
The President quotes from his grand jury testimony, ``I believe
at the time she filled out this affidavit, if she believed that
the definition of sexual relationship was two people having
intercourse, then it is accurate.'' Grand Jury Testimony of
President Clinton, 8/17/98, H. Doc. 105-311, p. 473. He made
this statement despite the fact that at the President's
deposition on January 17, 1988, his attorney asserted that the
affidavit indicated ``there is no sex of any kind in any
manner, shape or form.'' Later in the deposition, Mr. Bennett
read the President the portion of Ms. Lewinsky affidavit in
which she denied having a ``sexual relationship'' with the
President and asked the President if Ms. Lewinsky's statement
was true and accurate. The President responded: ``This is
absolutely true.'' Deposition of President Clinton in the case
of Jones v. Clinton, 1/17/98, p. 204. The President could not
reasonably have believed this affidavit was true in light of
the fact that he had engaged in an extensive sexual
relationship with Monica Lewinsky. His subsequent explanation
defining the term ``sexual relationship'' as having to include
sexual intercourse is contrived and it is not credible that
that is what he believed at the time of his deposition. Monica
Lewinsky testified before the grand jury under oath and
following a grant of transactional immunity that the contents
of her affidavit were not true:
Q. Paragraph 8 . . . [of the affidavit] says, ``I
have never had a sexual relationship with the
President.'' Is that true?
A. No.
Grand Jury Testimony of Monica Lewinsky, 8/6/98, H. Doc. 105-
311, p. 924.
g. Request for Admission, Number 42
Q. Do you admit or deny that when asked on January
17, 1998, in your deposition in the case of Jones v.
Clinton if you had ever given gifts to Monica Lewinsky,
you stated that you did not recall, even though you
actually had knowledge of giving her gifts in addition
to gifts from the ``Black Dog?''
A. In my grand jury testimony, I was asked about this
same statement. I explained that my full response was,
``I don't recall. Do you know what they were?'' By that
answer, I did not mean to suggest that I did not recall
giving gifts; rather, I meant that I did not recall
what the gifts were, and I asked for reminders. See
App. At 502-03.
The President's response to Request for Admission number 42
is false and misleading because in his answer, the president
tries to explain away his deposition answer in a manner that is
simply not believable. The President responded ``I don't
recall. Do you know what they were?'' to the question ``Well
have you ever given any gifts to Monica Lewinsky?'' He tells
the Committee this was not false or misleading because he did
not mean to suggest that he did not recall giving her gifts,
rather, he meant that he did not recall what the gifts were and
was asking for reminders. The President had a conversation on
December 28, 1997, three weeks before his deposition, in which
he discussed subpoenaed gifts with her, including a specific
gift, a hat pin. His response of ``I don't recall'' was
perjurious, false, and misleading, as was his explanation to
this Committee. Deposition of President Clinton in the case of
Jones v. Clinton, 1/17/98, p. 75.
h. Request for Admission, Number 43
Q. Do you admit or deny that you gave false and
misleading testimony under oath in your deposition in
the case of Jones v. Clinton when you responded ``once
or twice'' to the question ``has Monica Lewinsky ever
given you any gifts?''
A. My testimony was not false and misleading. As I
have testified previously, I give and receive numerous
gifts. Before my January 17, 1998, deposition, I had
not focused on the precise number of gifts Ms. Lewinsky
had given me. App. At 495-98. My deposition testimony
made clear that Ms. Lewinsky had given me gifts; at the
deposition, I recalled ``a book or two'' and a tie.
Dep. At 77. At the time, those were the gifts I
recalled. In response to OIC inquiries, after I had had
a chance to search my memory and refresh my
recollection, I was able to be more responsive.
However, as my counsel have informed the OIC, in light
of the very large number of gifts I receive, there
might still be gifts from Ms. Lewinsky that I have not
identified.
The President's Request for Admission number 43 is also
false and misleading because in it he continues to insist that
he was being truthful when he responded ``once or twice'' at
the deposition when he was asked if Monica Lewinsky had ever
given him any gifts. In fact, the evidence shows that Ms.
Lewinsky gave the President approximately 38 gifts presented on
numerous occasions. See chart H. Doc. 105-311, pp. 1251-61;
Deposition of President Clinton in the case of Jones v.
Clinton, 1/17/98, p. 76.
i. Request for Admission, Number 52
Q. Do you admit or deny that on January 18, 1998, at
or about 5:00 P.M., you had a meeting with Betty Currie
at which you made statements similar to any of the
following regarding your relationship with Monica
Lewinsky?
You were always there when she was there, right? We
were never really alone.
You could see and hear everything.
Monica came on to me, and I never touched her right?
She wanted to have sex with me and I couldn't do
that.
A. When I met with Ms. Currie, I believe that I asked
her certain questions, in an effort to get as much
information as quickly as I could and made certain
statements, although I do not remember exactly what I
said. See App. At 508.
Some time later, I learned that the Office of
Independent Counsel was involved and that Ms. Currie
was going to have to testify before the grand jury.
After learning this, I stated in my grand jury
testimony, I told Ms. Currie, ``Just relax, go in there
and tell the truth.'' App. At 591.
j. Request for Admission, Number 53
Q. Do you admit or deny that you had a conversation
with Betty Currie within several days of January 18,
1998, in which you made statements similar to any of
the following regarding your relationship with Monica
Lewinsky?
You were always there when she was there, right? We
were never really alone.
You could see and hear everything.
Monica came on to me, and I never touched her right?
She wanted to have sex with me and I couldn't do
that.
A. I previously told the grand jury that, ``I don't
know that I'' had another conversation with Ms. Currie
within several days of January 18, 1998, in which I
made statements similar to those quoted above. ``I
remember having this [conversation] one time.'' App. At
592. I further explained. ``I do not remember how many
times I talked to Betty Currie or when. I don't. I
can't possibly remember that. I do remember, when I
first heard about this story breaking, trying to
ascertain what the facts were, trying to ascertain what
Betty's perception was. I remember that I was highly
agitated, understandably, I think.'' App at 593.
I understand that Ms. Currie has said a second
conversation occurred the next day that I was in the
White House (when she was), Supp. At 535-36, which
would have been Tuesday, January 20, before I knew
about the grand jury investigation.
The President provided this committee with false and
misleading answers to Request for Admissions number 52 and 53.
He denies ``coaching'' Betty Currie after his deposition in the
case of Jones v. Clinton; instead, he responded ``I believe I
asked her certain questions, in an effort to get as much
information as quickly as I could.'' In number 53, the
President quoted his grand jury testimony, ``I do not remember
how many times I talked to Betty Currie or when. I don't, I
can't possibly remember that. I do remember, when I first heard
about this story breaking, trying to ascertain what the facts
were, trying to ascertain what Betty's perception was.'' Grand
Jury testimony of President Clinton, 8/17/98, H. Doc. 105-311,
p. 593.
These answers are not credible because the statements he
made to Ms. Currie were clearly false. Why would he be trying
to get information from her about false statements or refresh
his recollection concerning falsehoods? When President Clinton
was asked in his deposition whether it would be extraordinary
for Betty Currie to be in the White House between midnight and
six a.m., the President answered in part, ``those are questions
you'd have to ask her.'' Furthermore, he invoked Betty Currie's
name numerous times throughout the deposition, oftentimes
asserting that Ms. Lewinsky was around the oval office to see
Ms. Currie and that Ms. Currie talked about Vernon Jordan
helping Ms. Lewinsky and Betty talked with Ms. Lewinsky about
her move to New York. After mentioning Betty Currie so often
during his deposition, it was very logical for the President to
assume that the lawyers for Paula Jones may call her as a
witness. That explains why the President called her about two
hours after the completion of his deposition and asked her to
come into the office the next day, which was a Sunday. In her
testimony, Ms. Currie indicated that the President's remarks
were ``more like statements than questions.'' Based on his
demeanor and the manner in which he asked the questions, she
concluded that the President wanted her to agree with him. Ms.
Currie thought that the President was attempting to gauge her
reaction, and appeared concerned. Grand Jury Testimony of Betty
Currie, 1/17/98, pp. 71-76, H. Doc. 105-316, pp. 559-60.
The evidence clearly reveals the President was not trying
to refresh his recollection during a conversation with Betty
Currie on January 18, 1998, rather it reveals that President
Clinton was attempting to influence the testimony of Betty
Currie, by coaching her to recite inaccurate answers to
possible questions that might be asked of her if called to
testify in the case of Jones v. Clinton.
2. Explanation of the Gekas Amendment to Article IV
Representative Gekas of Pennsylvania offered an amendment
to strike paragraphs one, two, and three of Article IV. The
amendment was adopted by a vote of 29-5, with three Members
voting present. The stricken paragraphs asserted that President
Clinton abused the office of the President by lying to the
American people, aides and cabinet officials and by frivolously
asserting executive privilege in order to impede a federal
investigation. The remaining paragraph of Article IV charges
that the President abused the office of the President by making
perjurious, false and misleading statements in his response to
written requests for admission submitted to him by this
Committee as part of its impeachment inquiry. The Committee's
general conclusion regarding Mr. Gekas's amendment was summed
up by Mr. Goodlatte:
I think that no one should take from the decision to
delete these three sections of the article that we
don't severely abhor the actions of the President in
regard to these three sections. I believe that the
allegations contained in them are all true. I believe
the President of the United States did lie to the
American people. I do believe the President lied to his
cabinet and others, and I think that he hoped that in
so doing that they would carry forth his lies and I
think that is wrong as well. And I do believe that the
President has improperly exercised executive privilege.
But, I also don't believe that any of these three items
are impeachable offenses. And as a result, I'll support
this amendment.
Article IV originally read as follows:
Using the powers and influence of the office of
President of the United States, William Jefferson
Clinton, in violation of his constitutional oath
faithfully to execute the office of President of the
United States and, to the best of his ability,
preserve, protect, and defend the Constitution of the
United States, and in disregard of his constitutional
duty to take care that the laws be faithfully executed,
has repeatedly engaged in conduct that resulted in
misuse and abuse of his high office, impaired the due
and proper administration of justice and the conduct of
lawful inquiries, and contravened the laws governing
the integrity of the judicial and legislative branches
and the truth- seeking purpose of coordinate
investigative proceedings.
This misuse and abuse of office has included one or
more of the following:
(1) As President, using the attributes of office,
William Jefferson Clinton willfully made false and
misleading public statements for the purpose of
deceiving the people of the United States in order to
continue concealing his misconduct and to escape
accountability for such misconduct.
(2) As President, using the attributes of office,
William Jefferson Clinton willfully made false and
misleading public statements to members of his cabinet,
and White House aides, so that these Federal employees
would repeat such false and misleading statements
publicly, thereby utilizing public resources for the
purpose of deceiving the people of the United States,
in order to continue concealing his misconduct and to
escape accountability for such misconduct. The false
and misleading statements made by William Jefferson
Clinton to members of his cabinet and White House aides
were repeated by those members and aides, causing the
people of the United States to receive false and
misleading information from high government officials.
(3) As President, using the Office of the White House
Counsel, William Jefferson Clinton frivolously and
corruptly asserted executive privilege, which is
intended to protect from disclosure communications
regarding the constitutional functions of the
Executive, and which may be exercised only by the
President, with respect to communications other than
those regarding the constitutional functions of the
Executive, for the purpose of delaying and obstructing
a Federal criminal investigation and the proceedings of
a Federal grand jury.
(4) As President William Jefferson Clinton refused
and failed to respond to certain written requests for
admission and willfully made perjurious, false and
misleading sworn statements in response to certain
written requests for admissions propounded to him as
part of the impeachment inquiry authorized by the House
of Representatives of the Congress of the United
States. William Jefferson Clinton, in refusing and
failing to respond and in making perjurious, false and
misleading statements, assumed to himself functions and
judgments necessary to the exercise of the sole power
of impeachment vested by the Constitution in the House
of Representatives and exhibited contempt for the
inquiry.
In all of this, William Jefferson Clinton has
undermined the integrity of his office, has brought
disrepute on the Presidency, has betrayed his trust as
President, and has acted in a manner subversive of the
rule of law, to the manifest injury of the people of
the United States.
Wherefore, William Jefferson Clinton, by such
conduct, warrants impeachment and trial, and removal
from office and disqualification to hold and enjoy any
office of honor, trust, or profit under the United
States.
Paragraph (1)
In consideration of the drafting of Article IV, several
members had expressed grave concern regarding the President's
lies to the American people with respect to the Paula Jones
lawsuit, Monica Lewinsky and his potential criminal
culpability. President Clinton made six public statements
denying allegations that he had an improper sexual relationship
with Monica Lewinsky or obstructed justice in the federal civil
rights case of Jones v. Clinton. The Committee concluded that
the public trust, which is held by the President of the United
States, was deliberately abused by President Clinton when he
made these false statements. The intent of President Clinton
making false statements to the American public was to utilize
the power of the office of the President and convince the
public that these allegations were false. The political powers
that accompany the office of the President do not include
misleading the American public in an attempt to avoid or thwart
federal investigation.
President Clinton addressed the nation on August 17, 1998
and continued to mislead the American public. Although
President Clinton took this opportunity to disclose his
inappropriate sexual relationship, he stated that he had
testified truthfully before the grand jury and maintained that
his statements in his civil deposition were still ``legally
accurate.'' This statement was made from the map room of the
White House and aired across the country on almost every radio
or television station. The statement was not related to any
official business of the White House, it was made in the wake
of a federal investigation, and it was designed to mislead.
This statement was unlike any other statement President Clinton
has ever made and only analogous to a handful of other
Presidential statements throughout our history. However, the
Committee believes this statement was designed to mislead the
American public.
President Clinton has publicly apologized to the American
public for his inappropriate relationship but he has
continually denied any criminal allegations. The President
holds the highest office in the country and the trust of the
people. The Committee believes his failure to address these
criminal allegations while he has apologized for his personal
acts is a deliberate attempt by President Clinton to cloud the
issues before the American public. In 1974, the current
distinguished Ranking Member, Representative John Conyers,
noted that the American public cannot judge a chief executive
if he does not or will not speak to the American people
truthfully.
The chronology of the President's lies to the American
public began almost immediately after the Washington Post
published an article regarding the Lewinsky-Clinton affair on
Wednesday, January 21, 1998. The White House learned about the
story on the night of January 20th. The President spoke with
Bob Bennett between 12:08 a.m. and 12:39 a.m. on the 21st. Mr.
Bennett was quoted in the Washington Post article of the 21st
as saying, ``The President adamantly denies he ever had a
relationship with Ms. Lewinsky and she has confirmed the truth
of that.'' The White House issued a statement later that same
the day in response to the Washington Post story. The
statement, personally approved by the President, announced that
the President was ``outraged by these allegations'' and
proclaimed that he ``has never had an improper relationship
with this woman.''
President Clinton then began to personally and repeatedly
deny his relationship with Ms. Lewinsky to the American people:
1. January 21, 1998, Interview with Mara Liasson, Robert
Siegel and Linda Wertheimer, NPR: All Things Considered.
Siegel. Mr. President, welcome to the program. Many
Americans woke up to the news today that the Whitewater
independent counsel is investigating an allegation that
you, or you and Vernon Jordan, encouraged a young woman
to lie to lawyers in the Paula Jones civil suit. Is
there any truth to that allegation?
The President. No, sir. There's not. It's just not
true.
Siegel. Is there any truth to the allegation of an
affair between you and the young woman?
The President. No. That's not true either, and I have
told that--people that I would cooperate in the
investigation and I expect to cooperate with it. I
don't know any more about it really than you do, but I
will cooperate. The charges are not true. And I haven't
asked anybody to lie.
Liasson. Mr. President, where do you think this comes
from? Did you have any kind of relationship with her
that could have been misconstrued?
The President. Mara, I'm going to do my best to
cooperate with the investigation. I want to know what
they want to know from me. I think it's more important
for me to tell the American people that there wasn't
improper relations, I didn't ask anybody to lie, and I
intend to cooperate. And I think that's all I should
say right now, so I can get back to the work of the
country.
2. January 21, 1998, Interview with Jim Lehrer of the PBS
News Hour.
Mr. Lehrer. ``No improper relationship''--define what
you mean by that.
The President. Well, I think you know what it means.
It means that there is not a sexual relationship, an
improper sexual relationship, or any other kind of
improper relationship.
3. January 21, 1998, Telephone Interview with Morton
Kondracke and Ed Henry of Roll Call.
Mr. Kondracke. Okay. Let me just ask you one more
question about this. You said in a statement today that
you had no improper relationship with this intern. What
exactly was the nature of your relationship with her?
The President. Well, let me say, the relationship's
not improper, and I think that's important enough to
say. But because the investigation is going on and
because I don't know what is out--what's going to be
asked of me, I think I need to cooperate, answer the
questions, but I think it's important for me to make it
clear what is not. And then, at the appropriate time,
I'll try to answer what is. But let me answer, it is
not an improper relationship, and I know what the word
means. So let's just----
Mr. Kondracke. Was it in any way sexual?
The President. The relationship was not sexual. And I
know what you mean, and the answer is no.
4. January 22, 1998, Remarks Prior to Discussions with
Chairman Yasser Arafat of the Palestinian Authority and an
Exchange With Reporters:
Q. Forgive us for raising this while you're dealing
with important issues in the Middle East, but could you
clarify for us, sir, exactly what your relationship was
with Ms. Lewinsky, and whether the two of you talked by
phone, including any messages you may have left?
The President. Let me say, first of all, I want to
reiterate what I said yesterday. The allegations are
false, and I would never ask anybody to do anything
other than tell the truth. Let's get to the big issues
there, about the nature of the relationship and whether
I suggested anybody not tell the truth. That is false.
Now, there are a lot of other questions that are, I
think, very legitimate. You have a right to ask them;
you and the American people have a right to get
answers. We are working very hard to comply and get all
the requests for information up here, and we will give
you as many answers as we can, as soon as we can, at
the appropriate time, consistent with our obligation to
also cooperate with the investigations. And that's not
a dodge, that's really why I've--I've talked with our
people. I want to do that. I'd like for you to have
more rather than less, sooner rather than later. So
we'll work through it as quickly as we can and get all
those questions out there to you.
5. January 26, 1998, Remarks on the After-School Child
Care Initiative, Public Papers of the President, President
Clinton discussed the allegations surrounding his relationship
with Miss Lewinsky, in the conclusion of his statement on the
After-School Child Care Initiative:
Now, I have to go back to work on my State of the
Union speech. And I worked on it until pretty late last
night. But I want to say one thing to the American
people. I want you to listen to me. I'm going to say
this again. I did not have sexual relations with that
woman, Miss Lewinsky. I never told anybody to lie, not
a single time--never. These allegations are false. And
I need to go back to work for the American people.
6. February 5, 1998, Remarks Prior to Discussions with
Prime Minister Blair and an Exchange with Reporters, Public
Papers of the Presidents.
Q Mr. President, would you like to use this occasion
to tell the American people what kind of relationship,
if any, you had with Monica Lewinsky?
The President. Well, I've already said that the
charges are false. But there is an ongoing
investigation, and I think it's important that I go
back and do the work for the American people that I was
hired to do. I think that's what I have to do now.
President Clinton misled the American public when he
addressed the nation on August 17, 1998:
This afternoon in this room from this chair, I
testified before the Office of Independent Counsel and
the grand jury. . . . I answered their questions
truthfully, including questions about my private life,
questions no American citizen would ever want to
answer.
President Clinton falsely reassured the American people
that ``. . . I must take complete responsibility for all my
actions, both public and private. And that is why I am speaking
to you tonight.''
President Clinton misled the American public about his
civil deposition: ``As you know, in a deposition in January, I
was asked questions about my relationship with Monica Lewinsky.
While my answers were legally accurate, I did not volunteer
information.'' President Clinton admitted he misled people:
``I know my public comments and my silence about this
matter gave a false impression. I misled people, including even
my wife. I deeply regret that.''
After perjuring himself before the grand jury, President
Clinton told the American people there was no public
responsibility:
Now, this matter is between me, the two people I love
most--my wife and our daughter--and our God. I must put
it right, and I am prepared to do whatever it takes to
do so. . . . Nothing is more important to me
personally. But it is private, and I intend to reclaim
my family life for my family. It's nobody's business
but ours.
Committee members found these blatant attempts by the
President to deceive the American people to be particularly
offensive and violative of the public trust. However, it was
the measured judgment of most Committee members that these
statements did not rise to the level of an impeachable offense,
although the Committee does believe that Presidential lies to
the American public could constitute an impeachable offense in
other circumstances.
During debate on the Gekas amendment, Mr. McCollum noted
that paragraph one was about ``. . . lying to the public. Now,
I don't think we should go forward and impeach the President
for his speech before the American public telling us lies. But
I want you to know that in the Watergate hearings the
conclusion was just to do exactly that.''
The Committee decided not to follow the Watergate precedent
regarding lying to the American public in an attempt to cover-
up presidential criminal wrongdoing. Rather, the Committee
passed three articles against President Clinton charging him
with making similar lies under oath in a deposition, before a
grand jury and in answers to requests for admission propounded
to him by this Committee.
Mr. Hutchinson aptly summed up the views of many Committee
members regarding the deletion of paragraph 1 of Article IV:
I would have had trouble supporting Article IV
without this amendment that would delete paragraphs
one, two, and three. But I say that not to diminish the
significance or the substantially of the evidence in
regard to these three areas. One of them is the
President lied to the American public. I think that is
extraordinarily serious any time that happened.
Obviously there's no question that it did happen. It is
wrong. But I do not believe that should be included in
this article of impeachment on abuse of office.
Paragraph (2)
Article II, which passed the Committee by a vote of 21-16,
includes paragraph seven which asserts that the President tried
to obstruct justice and conceal evidence in an ongoing federal
grand jury investigation by making false and misleading
statements to his aides which the President knew may be
repeated if and when the aides testified before the grand jury.
Several Members believed the President also abused the power of
the office of the Presidency by lying to aides and cabinet
members whom he knew would repeat the lies in public
statements. The lies to aides that, in the view of the
Committee, constituted an attempt to prevent, impede or
obstruct the administration of justice are detailed in the
explanation section for Article III. Some of the lies that were
perpetuated by press aides and cabinet officials are detailed
below.
On January 23, 1998, after a meeting with his Cabinet, some
Cabinet members answered questions to the press about the
allegations.
Secretary of State Madeline Albright: ``The president
started out by saying that we--the allegations are untrue, that
we should stay focused on our jobs, and that he will be fine. .
. . I believe the allegations are completely untrue.''
Commerce Secretary William Daley: ``I'll second that.
Definitely.''
Health and Human Services Secretary Donna Shalala: ``Third
it.''
Michael McCurry, White House Spokesperson, on January 27,
1998, during a news briefing the Associated Press reported that
Mr. McCurry said: ``I think every American that heard him knows
exactly what he meant.''
Anne Lewis, White House Communications Director, on January
26, 1998, interview with Nightline: ``I can say with absolute
assurance the President of the United States did not have a
sexual relationship because I have heard the President of the
United States say so.''
On January 27, 1998, the Associated Press quoted Ms. Lewis:
``Sex is sex, even in Washington. I've been assured.''
President Clinton made a deliberate decision to fight
criminal allegations surrounding his relationship with Monica
Lewinsky. Grand Jury testimony reveals that President Clinton
told Richard Morris that he would have to win rather than admit
to committing perjury or obstruction of justice. The Committee
concluded that President Clinton consciously misled several
aides and cabinet members knowing that they would repeat his
false statements to the American public. These officials are
all federally paid civil servants who have used their positions
in the White House as a pulpit to repeat President Clinton's
false statements to the American public. The Committee believe
that use of these advisors in an attempt to mislead the
American public and beat his criminal allegations was an abuse
of the office of the President and his position as head of the
executive branch of government.
The President's continued deceptions caused millions of tax
dollars to be spent by not only the Office of Independent
Counsel in its duly authorized investigation, but also by White
House lawyers, communications employees and other government
employees who were utilized to help perpetuate the President's
lies and defend him from his criminal conduct.
After the grand jury began investigating the allegation of
perjury and obstruction of justice, President Clinton had the
chance to set the record straight before the grand jury itself,
but he declined six invitations in January, February and March
of 1998 from the OIC to appear before the grand jury and give
his testimony. Although he had no obligation to appear
voluntarily before the grand jury, he still continued to
perpetuate his lies and abuse the public trust as well as
utilizing the power of his office to attack the allegations of
criminal conduct. When Mr. Clinton finally testified before the
grand jury, he lied several times and then went on national
television after his testimony and lied to the American people
again.
Many Committee members were also appalled by the
President's efforts to spread his lies publicly through his
aides and cabinet members. These individuals work for and
represent the taxpayers and should not be made unwitting
participants in a Presidential cover-up. The majority Committee
members believed this was an abuse of the office of the
President and the resources that are available to its occupant.
Furthermore, Mr. Hutchinson pointed out that lying to aides is
``extraordinarily relevant and significant in terms of proving
intent and a pattern of conduct on behalf of the President
supporting obstruction of justice and other false statements
that are recited in other articles.'' However, the Committee
concluded that lies to the aides standing alone did not
constitute an impeachable offense in this case.
Paragraph (3)
The aspect of executive privilege that was at issue in
paragraph three of Article IV dealt with the presidential
communications privilege. This privilege derives from the
separation of powers principle embodied in the Constitution. It
protects the confidentiality of communications between a
President and his senior advisers about official government
matters. It also protects conversations between one or more
senior advisers when the President is not present, if the
conversation is about advice to be given to the President on
official government matters. The privilege belongs to the
President alone and the President must personally direct that
it be asserted.
Such conversations are presumptively privileged. However,
the privilege can be overcome if a prosecutor conducting a
criminal investigation can demonstrate with specificity why it
is likely that the presumptively privileged materials contain
important evidence and why this evidence is not practically
available from other sources.
Several members of the Committee asserted that President
Clinton's Assertions of Privilege were an abuse of power
because even under the broadest interpretation of the
presidential communications privilege, it is intended only to
protect communications about official government matters.
Moreover, it is a privilege for the use of the President alone.
It is not intended to allow the President to cover up
embarrassing personal matters. The Members charged that is
exactly what President Clinton used it for here--indeed, the
President repeatedly argued that he should not be impeached
precisely because these matters are purely private in nature.
In addition, they argued that President tried to extend the
privilege far beyond any previously known boundaries by
claiming it for conversations that White House aides had with
grand jury witnesses and their attorneys, the President's
private attorneys, Vernon Jordan, and low-level White House
employees who do not advise the President. The Members
supporting impeachment for abuse of power relating to executive
privilege argued that there is no legal basis for including any
of these conversations within the privilege. According to this
view, if these boundaries of the privilege were accepted, the
President could easily cover up almost any wrongdoing.
Furthermore, these frivolous assertions of privilege also cost
huge amounts of the OIC's time and resources to litigate, many
of which the President ultimately abandoned.
Most members of the majority associated themselves with the
comments of Mr. McCollum that:
With regard to executive privilege, I don't think
there's any question the President has abused executive
privilege here because it can only be used to protect
official functions. And in case after case, from Bruce
Lindsey all the way through the witnesses who were
called before the grand jury who were White House aides
were not asserting executive privilege to protect the
government official business they were asserting it in
order to protect and keep private matters that concern
the personal conduct of the President in the matters
we've been discussing here.
However, the prevailing conclusion of the Committee was
summed up by Mr. Gekas:
I don't believe that the evidence that has been
presented to us nor the contents of the referral give
us the ability to second guess the rationale behind the
President or what was in his mind in asserting that
executive privilege. We may have a good idea. And those
of us who have become suspicious about some of the
actions of the President would have a right to enhance
those suspicions. Nevertheless, we ought to give, in my
judgment and in the judgment of many, the benefit of
the doubt in the assertion of executive privilege.
Although most Members were not prepared to include abuse of
executive privilege in an impeachment article against President
Clinton, many Members also agreed with Representative
Goodlatte's statement that ``this Committee should be outspoken
in it's condemnation of the misuse of executive privilege
because in some instances that executive privilege power has
been exercised wrongly with the Congress in other regards. And
it is important that we do not allow a continued abuse of the
executive privilege power.''
The following is a list of assertions of Executive
Privilege by President Clinton that many Members of the
Committee found to be frivolous.
In the course of the Lewinsky investigation, President
Clinton abused his power through repeated frivolous assertions
of executive privilege by at least five of his aides.
1. Bruce Lindsey
Mr. Lindsey is Assistant to the President and Deputy
Counsel and one of President Clinton's closest confidantes.
None of the conversations for which Mr. Lindsey claimed
executive privilege involved official governmental matters and
the privilege was overcome by the need for the information in
the criminal investigation.
In addition, Mr. Lindsey claimed executive privilege for a
typed statement about privilege that he brought in and read to
the grand jury even after he had read it. He claimed executive
privilege for his conversations with the President's private
lawyers and Vernon Jordan. He claimed executive privilege for
conversations he had with attorneys for witnesses who appeared
in the grand jury. He claimed executive privilege for a
conversation with Stephen Goodin, who is the President's
personal aide and who has no responsibility for advising the
President.
It should be noted that at some points before the grand
jury, Mr. Lindsey took the position that he was not actually
asserting the privilege, but that he was merely noting that the
answer might be privileged. He further asserted that he would
have to get instructions from the President as to whether to
assert the privilege. Whatever the technicalities, he refused
to answer the questions. See, e.g., Lindsey 2/18/98 GJT at 77-
79: Supplemental Materials (H. Doc. 105-316) at 2360.
The President contested the OIC's motion to compel the
testimony of Mr. Lindsey. After losing in the District Court,
the President abandoned the claim of executive privilege. In Re
Grand Jury Proceedings, 5 F.Supp. 2d 21 (D.D.C. 1998). However,
he continued to pursue a claim of governmental attorney-client
privilege with Mr. Lindsey. In addition, despite the earlier
abandonment of the claim, Mr. Lindsey again asserted privilege
when he appeared in the grand jury on August 28.
See the list, infra, for exact questions to which Mr.
Lindsey asserted executive privilege.
2. Lanny Breuer
Mr. Breuer is a special counsel to the President working in
the White House Counsel's Office. None of the conversations for
which Mr. Breuer claimed executive privilege involved official
governmental matters and the privilege was overcome by the need
for the information in the criminal investigation.
In addition, Mr. Breuer asserted executive privilege for
his conversations with the President's private lawyers and his
conversations with a low level White House employee about his
efforts to get her an attorney. Neither the private lawyers nor
the low level employee fell within the privilege.
Interestingly, the President did not claim executive
privilege for Mr. Blumenthal's conversations with the
President's private lawyers. Blumenthal 2/26/98 GJT at 27-34;
Supplemental Materials (H. Doc. 105-316) at 164-65. In
addition, Mr. Breuer asserted executive privilege for
conversations with Mr. Blumenthal when Mr. Blumenthal had
already testified to the substance of those conversations.
Compare Breuer 8/4/98 GJT at 19, 22-23, 28; Supplemental
Materials (H. Doc. 105-316) at 269-71 with Blumenthal 6/25/98
GJT at 30-31, 50; Supplemental Materials (H. Doc. 105-316) at
196, 201.
According to the referral from the Office of the
Independent Counsel, on August 11, 1998, the District Court
denied Mr. Breuer's claim of executive privilege. On August 21,
1998, the White House appealed to the D.C. Circuit. The White
House ultimately abandoned its appeal of this case. It is
unknown whether Mr. Breuer has returned to the grand jury. See
Referral (H. Doc. 105-310) at 208.
See the list, infra, for exact questions to which Mr.
Breuer asserted executive privilege.
3. Cheryl Mills
Ms. Mills is Deputy Assistant to the President and Deputy
Counsel. None of the conversations for which Ms. Mills claimed
executive privilege involved official governmental matters and
the privilege was overcome by the need for the information in
the criminal investigation.
In addition, Ms. Mills claimed executive privilege for her
conversations with the President's private lawyers. She claimed
executive privilege for conversations she had with witnesses
who appeared in the grand jury and their attorneys. She claimed
executive privilege for a conversation with Betty Currie, who
is the President's personal secretary and who has no
responsibility for advising the President.
As far as is publicly known, the OIC never sought to
litigate Ms. Mills's claims of executive privilege.
See the list, infra, for exact questions to which Ms. Mills
asserted executive privilege.
4. Sidney Blumenthal
Mr. Blumenthal is an Assistant to the President who works
on a variety of matters. None of the conversations for which
Mr. Blumenthal claimed executive privilege involved official
governmental matters and the privilege was overcome by the need
for the information in the criminal investigation.
The President contested the OIC's motion to compel the
testimony of Mr. Blumenthal. After losing in the District
Court, the President abandoned the claim, and Mr. Blumenthal
answered the questions in the grand jury. In Re Grand Jury
Proceedings, 5 F.Supp.2d 21 (D.D.C. 1998).
See the list, infra, for exact questions to which Mr.
Blumenthal asserted executive privilege.
5. Nancy Hernreich
Ms. Hernreich is Deputy Assistant to the President and
Director of Oval Office Operations. Ms. Hernreich described her
job as executing the President's daily schedule and managing
his immediate secretarial staff. Hernreich 2/25/98 GJT at 4-7;
Supplemental Materials (H. Doc. 105-316) at 1318-19. None of
the conversations for which Ms. Hernreich claimed executive
privilege involved official governmental matters and the
privilege was overcome by the need for the information in the
criminal investigation.
In addition, Ms. Hernreich is a clerical and administrative
employee. She does not fall within the category of advisers
covered by the privilege--those ``who have broad and
significant responsibility for investigating and formulating
the advice to be given the President on a particular matter.''
In Re Sealed Case, 121 F.3d 729, 752 (D.C. Cir. 1997). In this
connection, the President did not assert executive privilege
with respect to Betty Currie, who holds a similar job. The
President contested the OIC's motion to compel Ms. Hernreich's
testimony, but without explanation abandoned the claim
immediately before the hearing. See Referral (H. Doc. 105-310)
at 207.
See the list, infra, for exact questions to which Ms.
Hernreich asserted executive privilege.
Lying about Assertions of Executive Privilege
Several members of the Committee concluded that the
President has lied at least twice about his claims of executive
privilege. On March 24, while traveling in Africa, the
President publicly stated that he did not know about the
assertions of executive privilege and said that the press
should ask someone who knows. A week earlier in a sealed
filing, White House Counsel Chuck Ruff had filed a declaration
in which he told the Court that he had discussed the matter
with the President and that the President had directed him to
assert the privilege. See Referral (H. Doc. 105-310) at 207-08.
After Judge Johnson ruled against the President on May 27
on executive privilege with respect to Ms. Hernreich, Mr.
Blumenthal, and Mr. Lindsey, he abandoned those claims of
executive privilege. The OIC thought that the President would
no longer claim the privilege in the grand jury. However, Mr.
Breuer appeared in the grand jury on August 4 and again made
broad claims of executive privilege. On August 11, Judge
Johnson again ruled against the President. The same day, Ms.
Mills appeared in the grand jury and made broad claims of
executive privilege. On August 17, the President told the grand
jury that he strongly felt that the original executive
privilege decision should not be appealed. On August 21, he
filed an appeal in the Breuer case. On August 28, Mr. Lindsey
appeared before the grand jury and again asserted executive
privilege even though the President had previously abandoned
the claim. See Referral (H. Doc. 105-310) at 208-09. The White
House later withdrew its appeal of the Breuer executive
privilege case.
Questions on which Bruce Lindsey asserted executive
privilege
1. Q. Have you received information from him [i.e. Ms.
Currie's attorney], sir?
A. No, sir. Not directly.
Q. Directly or indirectly?
A. I don't believe that I can respond to that one. I think
that would cover areas that are potentially privileged. Lindsey
2/18/98 GJT at 45; Supplemental Materials (H. Doc. 105-316) at
2355.
2. Mr. Lindsey claimed executive privilege for a typed
statement about privileges that he brought in and read to the
grand jury. Lindsey 2/18/98 GJT at 57-58; Supplemental
Materials (H. Doc. 105-316) at 2357.
3. ``Tell the grand jury about all conversations you had
about Monica Lewinsky at any time, including, say, since the
first of 1998.'' Lindsey 2/18/98 GJT at 73-74; Supplemental
Materials (H. Doc. 105-316) at 2359-60.
4. ``As counsel for the presidency or the President, are
you aware of any statements to you where the President has
indicated that he wanted to limit disclosure of information in
this matter, that being the Monica Lewinsky matter?'' Lindsey
2/18/98 GJT at 76; Supplemental Materials (H. Doc. 105- 316) at
2360.
5. ``Knowing that we may ask you those question, did you go
to the President and ask the President whether or not he would
waive attorney-client privilege or waive executive privilege?''
Lindsey 2/18/98 GJT at 78; Supplemental Materials (H. Doc. 105-
316) at 2360.
6. ``Well, can we assume that if you had had that
conversation and he [i.e. the President] had directed you to
answer the questions and to waive the privilege, you'd be doing
so today?'' Lindsey 2/18/98 GJT at 84; Supplemental Materials
(H. Doc. 105-316) at 2361.
7. ``Can you tell us about those [i.e. conversations with
the President about the Jones case]?'' Lindsey 2/18/98 GJT at
84-85; Supplemental Materials (H. Doc. 105-316) at 2361.
8. ``Will you tell the grand jurors what those facts [i.e.
facts learned from the President about the Paula Jones matter]
were?'' Lindsey 2/18/98 GJT at 89-90; Supplemental Materials
(H. Doc. 105- 316) at 2362.
9. ``Tell us what you discussed [with the President about
Monica Lewinsky and the Paula Jones matter].'' Lindsey 2/18/98
GJT at 90; Supplemental Materials (H. Doc. 105-316) at 2362.
10. ``Did you tell the President that Monica Lewinsky was
identified as a witness in the Paula Jones case?'' Lindsey 2/
18/98 GJT at 91; Supplemental Materials (H. Doc. 105-316) at
2362.
11. ``Q. When did you first know that Monica Lewinsky was a
witness in the Paula Jones case?
A. Can I ask my lawyer whether I can respond to that
question?
Q. Yes. Well, why don't you write that down? Why don't you
write that down with your questions? From whom did you learn
that Monica Lewinsky was identified as a witness? Actually--
well--
A. Let me answer it. Without--well, I don't want to waive
any privileges here. I certainly don't want to walk down that
road. Monica Lewinsky's name appeared on a witness list
provided by the plaintiffs.
Q. From whom did you receive the witness list?
A. Again, you know, I--I'm--we're walking down that road.
You know, I don't know if I can respond to that.
Q. When did you receive the witness list?
A. I think I can--well, let me see if I can answer when--
Lindsey 2/18/98 GJT at 96-97; Supplemental Materials (H. Doc.
105-316) at 2363.
12. ``Has there been a concerted effort known to you,
either conducted out of your office or in some other office in
the White House, that is designed to criticize the Independent
Counsel investigation and this grand jury's work?'' Lindsey 2/
18/98 GJT at 103; Supplemental Materials at (H. Doc. 105- 316)
2364.
13. ``What was discussed [between Mr. Lindsey and Vernon
Jordan about the Paula Jones case on January 18]?'' Lindsey 2/
18/98 GJT at 108, 112; Supplemental Materials (H. Doc. 105-316)
at 2365, 2366.
14. ``What did you discuss [between Mr. Lindsey, Ms. Mills,
and Vernon Jordan about the Paula Jones case on January 19]?''
Lindsey 2/18/98 GJT at 113; Supplemental Materials (H. Doc.
105- 316) at 2366.
15. After this exchange, Mr. Lindsey was asked a number of
questions about when he would assert executive privilege that
repeated the questions set out above and his assertions of the
privilege. Lindsey 2/18/98 GJT at 115-22; Supplemental
Materials (H. Doc. 105-316) at 2366-68.
16. ``What was discussed at the meeting--the subject--I
mean, the substance of the meeting [among Mr. Lindsey, Ms.
Mills, Mr. Ruff, the President, and the First Lady on February
17]. I am now asking you.'' Lindsey 2/19/98 GJT at 7;
Supplemental Materials (H. Doc. 105-316) at 2389.
17. ``What was the substance of what occurred at the
meeting [among Mr. Lindsey, Ms. Mills, Mr. Ruff, Mr. Breuer,
Mr. Eggleston, and the President on February 18]?'' Lindsey 2/
19/98 GJT at 8; Supplemental Materials (H. Doc. 105-316) at
2389.
18. ``What did you talk about at this meeting [among Mr.
Lindsey, the President's private lawyers, and the President] on
the [January] 17th--before the [President's] deposition?''
Lindsey 2/19/98 GJT at 11; Supplemental Materials (H. Doc. 105-
316) at 2389.
19. ``What was discussed with regard to Monica Lewinsky
[among Mr. Lindsey, the President's private lawyers, and the
President during the breaks in the President's deposition]?''
Lindsey 2/19/98 GJT at 13; Supplemental Materials (H. Doc. 105-
316) at 2390.
20. ``Again what was discussed at that meeting [among Mr.
Lindsey, Mr. Bowles, and the President shortly after the
President's deposition]?'' Lindsey 2/19/98 GJT at 14;
Supplemental Materials (H. Doc. 105-316) at 2390.
21. ``At any of these meetings that occurred that day--that
is, the day of the [January] 17th--did Betty Currie's name come
up?'' Lindsey 2/19/98 GJT at 14; Supplemental Materials (H.
Doc. 105- 316) at 2390.
22. ``What was said during that conversation [i.e. Mr.
Lindsey's phone conversation with the President in the early
morning hours of January 21, the day the Lewinsky story was
first published in the Washington Post]?'' Lindsey 2/19/98 GJT
at 42; Supplemental Materials (H. Doc. 105-316) at 2394.
23. ``What did he [Mr. McCurry] say occurred [in a meeting
among White House staff in the morning of January 21, the day
the Lewinsky story was first published in the Washington
Post]?'' Lindsey 2/19/98 GJT at 44; Supplemental Materials (H.
Doc. 105-316) at 2395.
24. ``And you will not tell us about the substance of what
occurred with your conversation with Mr. McCurry [about a
meeting among White House staff in the morning of January 21,
the day the Lewinsky story was first published in the
Washington Post]?'' Lindsey 2/19/98 GJT at 45; Supplemental
Materials (H. Doc. 105-316) at 2395.
25. ``Tell us everything that occurred in the 10 minutes
that you talked about the Monica Lewinsky matter [in a meeting
among White House Counsel's Office staff, White House press
staff, and the President on January 21, the day the Lewinsky
story was first published in the Washington Post]?'' Lindsey 2/
19/98 GJT at 48; Supplemental Materials (H. Doc. 105-316) at
2395.
26. ``What did you talk to him [the President's personal
aide, Stephen Goodin] about [shortly after the Lewinsky story
broke]?'' Lindsey 2/19/98 GJT at 49; Supplemental Materials (H.
Doc. 105-316) at 2396.
27. ``What did you [Mr. Lindsey] say, and what did he [Mr.
McGrath, an attorney for a witness] say [in a telephone
conversation that occurred in early February]?'' Lindsey 2/19/
98 GJT at 51; Supplemental Materials (H. Doc. 105-316) at 2396.
28. ``What did you [Mr. Lindsey and Mr. Podesta's lawyer]
talk about [in a conversation that occurred in early
February]?'' Lindsey 2/19/98 GJT at 53; Supplemental Materials
(H. Doc. 105-316) at 2396.
29. ``You know they [i.e. other attorneys in the White
House Counsel's Office] have [spoken to Betty Currie's
attorney]? How do you know that?'' Lindsey 2/19/98 GJT at 54;
Supplemental Materials (H. Doc. 105-316) at 2396.
30. ``Q. Are you prepared to answer any questions about
conversations you are aware of about Monica Lewinsky that
occurred among White House staff?
A. I believe the answer is that I'm not because of the
reasons I stated: the presidential communication, the
deliberative process, and/or the attorney-client privilege.''
Lindsey 2/19/98 GJT at 59; Supplemental Materials (H. Doc. 105-
316) at 2397.
31. ``Are you prepared to tell us about your discussion
with Lanny Breuer about that [i.e. Mr. Breuer's conversation
with the attorney for witness, Michael McGrath]?'' Lindsey 2/
19/98 GJT at 60; Supplemental Materials (H. Doc. 105-316) at
2397.
32. Towards the end of Mr. Lindsey's appearance before the
grand jury on February 19, he gave a lengthy explanation of his
view of the various privileges that he claimed. Lindsey 2/19/98
GJT at 64-79; Supplemental Materials (H. Doc. 105-316) at 2399-
401.
33. ``And you decline to answer either one--the substance
of either one [of Mr. Lindsey's meetings with Mickey Kantor,
one of the President's private attorneys, after January
20th]?'' Lindsey 2/19/98 GJT at 81; Supplemental Materials (H.
Doc. 105-316) at 2401.
34. ``Are you prepared to discuss the substance of what you
heard [from other members of the White House Counsel's Office
about the testimony of White House steward Bayani Nelvis]?''
Lindsey 2/19/98 GJT at 82; Supplemental Materials (H. Doc. 105-
316) at 2401.
35. ``Q. Mr. Lindsey, my understanding from discussions
with your attorney is, at least as of now, you are going to
claim all the privileges you've mentioned with respect to which
individuals [i.e. grand jury witnesses], if any, you received
information [i.e. how they testified] about; is that correct?
A. That is correct, yes, sir.'' Lindsey 2/19/98 GJT at 83-
84; Supplemental Materials (H. Doc. 105- 316) at 2401.
36. ``Okay. Who was that [who asked him why Mr. Lindsey why
he did not return Linda Tripp's page in the summer of 1997
regarding Kathleen Willey]?'' Lindsey 3/12/98 GJT at 16-17;
Supplemental Materials (H. Doc. 105-316) at 2406-07.
37. ``Did the President seem concerned about the number of
deposition questions he was asked pertaining to Monica Lewinsky
when you spoke to him after the deposition?'' Lindsey 3/12/98
GJT at 18; Supplemental Materials (H. Doc. 105-316) at 2407.
38. ``Was the President concerned about the number of
deposition questions asked about Monica Lewinsky?'' Lindsey 3/
12/98 GJT at 20; Supplemental Materials (H. Doc. 105-316) at
2407.
39. ``My question would be after that weekend [i.e. the
weekend immediately after the Lewinsky story broke], aside from
anything that might have been reported in the press, did you
hear directly or indirectly that she [i.e. Betty Currie] might
have been talking to representatives from our office?'' Lindsey
3/12/98 GJT at 27-28; Supplemental Materials (H. Doc. 105-316)
at 2409.
40. ``Did Vernon Jordan ever tell you that President
Clinton should settle the Paula Jones matter?'' Lindsey 3/12/98
GJT at 31-32; Supplemental Materials (H. Doc. 105-316) at 2410.
41. ``I had asked you how much of your discussion with
Vernon Jordan was related to settlement and you are invoking
the privilege on that?'' Lindsey 3/12/98 GJT at 36;
Supplemental Materials (H. Doc. 105-316) at 2411.
42. ``Did you discuss with him [Vernon Jordan] or did he
discuss with you how much money would be needed to settle the
case and who would raise it?'' Lindsey 3/12/98 GJT at 37;
Supplemental Materials (H. Doc. 105-316) at 2412.
43. ``Can you tell us what that conversation [among Mr.
Lindsey, Ms. Mills, and Mr. Jordan on January 19] was about?''
Lindsey 3/12/98 GJT at 39; Supplemental Materials (H. Doc. 105-
316) at 2412.
44. ``Okay. And what was the reason that he [Mr. Jordan]
was there [at the January 19 meeting among Mr. Lindsey, Ms.
Mills, and Mr. Jordan]?'' Lindsey 3/12/98 GJT at 40;
Supplemental Materials (H. Doc. 105-316) at 2412.
45. ``Q. Are your claiming a privilege as to any Monica
Lewinsky/Paula Jones discussions you may have had with the
First Lady?
A. I consider at a minimum the First Lady to be an advisor
to the President, yes.'' Lindsey 3/12/98 GJT at 47;
Supplemental Materials (H. Doc. 105-316) at 2414.
46. ``Did the President know whether Betty Currie had
called Vernon Jordan in order to help Monica Lewinsky get a job
in New York?'' Lindsey 3/12/98 GJT at 53; Supplemental
Materials (H. Doc. 105-316) at 2416.
47. ``When, if ever, did you know it [i.e. that Ms.
Lewinsky had been in the White House on December 6th], if you
know it?'' Lindsey 3/12/98 GJT at 64; Supplemental Materials
(H. Doc. 105- 316) at 2418.
48. ``What did he [i.e. the President] say [about his
relationship with Ms. Lewinsky at a meeting among Mr. Lindsey,
Ms. Mills, and the President shortly after the Lewinsky story
broke]?'' Lindsey 8/28/98 GJT at 22; Supplemental Materials (H.
Doc. 105-316) at 2428.
49. ``Okay. The Grand Jury also asked the question: In your
discussions with the President about the relationship that he
had with Ms. Lewinsky, did you ever explicitly ask him, you
know, ``What exactly did you do with her?'' Not, ``What didn't
you do?''--``What did you do?''' Lindsey 8/28/98 GJT at 84-87;
Supplemental Materials (H. Doc. 105-316) at 2444.
50. ``And this is a telephone log from the White House log
indicating the President spoke to you--called you the morning
of January 21, 1998, and spoke to you from the hours of 12:41
to 1:10 a.m. What did you talk about?'' Lindsey 8/28/98 GJT at
88; Supplemental Materials (H. Doc. 105-316) at 2445.
51. ``This Grand Jury exhibit, BRL-1, also indicates that
you called the President back after your conversation with him
[Mr. Podesta]--twice. At 1:36 a.m., you talked to him for two
minutes; then you called him back again at 1:39 a.m. and talked
to him for no more than two minutes. What did you talk about
with the President then?'' Lindsey 8/28/98 GJT at 90;
Supplemental Materials (H. Doc. 105-316) at 2445.
52. ``And then, the President called you at 7:14 a.m. that
Wednesday, January 21, and you talked from 7:14 a.m. to 7:22
a.m. What did you talk about then?'' Lindsey 8/28/98 GJT at 90;
Supplemental Materials (H. Doc. 105-316) at 2445.
------
Questions on which Lanny Breuer asserted executive
privilege
1. ``All right. Do you recall `` and again, I'll go back to
the time period we identified when the Washington Post article
appeared, January 1, 1998, do you recall Mr. Blumenthal on or
about that date revealing to you a conversation he had had with
the President regarding Monica Lewinsky?'' Breuer 8/4/98 GJT at
19; Supplemental Materials (H. Doc. 105-316) at 269.
Although Mr. Breuer refused to answer this question, Mr.
Blumenthal had already testified to the substance of the
conversation. Blumenthal 6/25/98 GJT at 30-31, 50; Supplemental
Materials (H. Doc. 105-316) at 196, 201.
2. ``Do you recall what that [i.e. what else was discussed
with Mr. Blumenthal during this conversation] was?'' Breuer 8/
4/98 GJT at 22-23; Supplemental Materials (H. Doc. 105-316) at
270.
Although Mr. Breuer refused to answer this question, Mr.
Blumenthal had already testified to the substance of the
conversation. Blumenthal 6/25/98 GJT at 30-31, 50; Supplemental
Materials (H. Doc. 105-316) at 196, 201.
3. ``Mr. Breuer, let me pick back up on our discussion of
the conversation that you had with Mr. Blumenthal. Did he tell
you when he had had the conversation with the President that he
related to you?'' Breuer 8/4/98 GJT at 28; Supplemental
Materials (H. Doc. 105-316) at 271. (Although Mr. Breuer
refused to answer this question, Mr. Blumenthal had already
testified to the substance of the conversation. Blumenthal 6/
25/98 GJT at 30-31, 50; Supplemental Materials (H. Doc. 105-
316) at 196, 201.)
4. ``Q. The President's private lawyers, where do they fit
in?''
A. I will not--conversations that I had with the
President's personal lawyers, I will claim privilege over.
Q. Both privileges [i.e. executive privilege and attorney-
client privilege]?
A. Both privileges. Breuer 8/4/98 GJT at 45; Supplemental
Materials (H. Doc. 105-316) at 276.
5. ``Q. Okay. Do you know how Ms. White [an attorney] came
to represent Ms. Raines [a White House employee]?
A. I do know the answer to that.
Q. Can you tell us how that came about?
A. Well, I don't believe I can because I think to do that
would force me to reveal a conversation that I've had with Ms.
Raines. Since Ms. Raines is a White House employee and I would
have had a conversation with her in my capacity as special
counsel, I think my discussion with Ms. Raines would be
protected, given that she was seeking advice, it would be
protected by both the attorney- client privilege and executive
privilege. Breuer 8/4/98 GJT at 59; Supplemental Materials (H.
Doc. 105-316) at 279.
6. ``Q. Okay. I guess I'm asking you if you gave Ms. Raines
Wendy White's [name]''
A. Right. And I guess I can't answer that, given that I'm
trying to preserve the substance of the conversation, so I
think you might make a natural conclusion of that, but I
really, truly believe that I'm going to try as best I can to
preserve the communications I have with White House employees
and over the substance of them assert attorney-client privilege
and executive privilege. I don't think I can answer that
specific question. Breuer 8/4/98 GJT at 65; Supplemental
Materials (H. Doc. 105- 316) at 281.
7. Mr. Breuer asserted executive privilege with respect to
five meetings he had with the President relating to the
Lewinsky matter. Breuer 8/4/98 GJT at 70-78; Supplemental
Materials (H. Doc. 105- 316) at 282-84.
8. Mr. Breuer asserted executive privilege with respect to
the White House Counsel's Office's preparations for impeachment
proceedings. Breuer 8/4/98 GJT at 78; Supplemental Materials
(H. Doc. 105-316) at 284.
9. ``Have you ever discussed with Mr. Kendall the
relationship between the President and Monica Lewinsky?''
Breuer 8/4/98 GJT at 79; Supplemental Materials (H. Doc. 105-
316) at 284.
10. ``Have you ever discussed with Ms. Seligman, who is
another of the President's private lawyers, the relationship
between the President and Monica Lewinsky?'' Breuer 8/4/98 GJT
at 80; Supplemental Materials (H. Doc. 105-316) at 284.
11. ``Have you ever discussed, again, with Mr. Kantor the
relationship between the resident and Monica Lewinsky?'' Breuer
8/4/98 GJT at 84; Supplemental Materials (H. Doc. 105-316) at
285.
12. ``Have you ever discussed with Mr. Ruff the nature of
the relationship between the President and Monica Lewinsky?''
Breuer 8/4/98 GJT at 84; Supplemental Materials (H. Doc. 105-
316) at 285.
13. ``Have you ever discussed with Cheryl Mills the nature
of the relationship between the President and Monica
Lewinsky?'' Breuer 8/4/98 GJT at 84; Supplemental Materials (H.
Doc. 105-316) at 285.
14. ``Have you had such discussions with Bruce Lindsey?''
Breuer 8/4/98 GJT at 85; Supplemental Materials (H. Doc. 105-
316) at 286.
15. ``And has he [i.e. Bob Bennett] described to you the
nature of the relationship between the President and Monica
Lewinsky?'' Breuer 8/4/98 GJT at 95; Supplemental Materials (H.
Doc. 105- 316) at 288.
16. Mr. Breuer also asserted executive privilege with
respect to whether he had discussed gifts, the President's
conversation with Ms. Currie, Ms. Lewinsky's affidavit, and the
President's knowledge of Ms. Lewinsky's job search with the
persons mentioned in 9-15, above. Breuer 8/4/98 GJT at 95- 103;
Supplemental Materials (H. Doc. 105-316) at 288-90.
Questions on which Cheryl Mills asserted executive
privilege
1. ``Okay. And with respect to the conversation [between
Ms. Mills and Mr. Lindsey on the day of the President's
deposition] that you don't want to reveal the substance of the
conversation, what privileges are you asserting with respect to
that?'' Mills 8/11/98 GJT at 53; Supplemental Materials (H.
Doc. 105-316) at 2890.
2. ``Okay. Tell me about that [i.e. the President's
direction to Ms. Mills to assert executive privilege] with
respect to the privileges being asserted in this matter.''
Mills 8/11/98 GJT at 53; Supplemental Materials (H. Doc. 105-
316) at 2890.
3. ``Okay. And how do you know that [i.e. that the
President directed Ms. Mills to assert executive privilege]?''
Mills 8/11/98 GJT at 54; Supplemental Materials (H. Doc. 105-
316) at 2890.
4. ``All right. With respect to this conversation [with Mr.
Lindsey on the day of the President's deposition] about which
you've asserted the privilege, what caused--you don't recall
who called whom that day, but what caused the contact between
either of you with respect to this conversation?'' Mills 8/11/
98 GJT at 54; Supplemental Materials (H. Doc. 105-316) at 2890.
5. ``Okay. Are you aware of whether or not something
happened on Mr. Lindsey's end to cause the conversation to take
place? Without respect to what that was.'' Mills 8/11/98 GJT at
55; Supplemental Materials (H. Doc. 105-316) at 2890.
6. ``All right. And what was discussed at that meeting
[among the President and various White House attorneys and
staff on January 31 or February 1] with respect to the
President's relationship with Monica Lewinsky?'' Mills 8/11/98
GJT at 66; Supplemental Materials (H. Doc. 105-316) at 2893.
7. After asserting privilege on the previous question, Ms.
Mills made a general claim of executive privilege with respect
to her conversations with the President about Monica Lewinsky.
Mills 8/11/98 GJT at 66-68; Supplemental Materials (H. Doc.
105-316) at 2893.
8. ``I think I asked you about the contacts you had with
the President's outside lawyers with respect to the Paula Jones
litigation.'' Mills 8/11/98 GJT at 71; Supplemental Materials
(H. Doc. 105-316) at 2894.
9. ``Okay. And with respect to the questions we would ask
you as to your conversations with such persons [i.e. grand jury
witnesses], would you assert a privilege and decline to provide
the information of those conversations?'' Mills 8/11/98 GJT at
72-73; Supplemental Materials (H. Doc. 105-316) at 2894-95.
10. ``All right. With respect to counsel for such [grand
jury] witnesses, are you asserting privilege with respect to
that or not?'' Mills 8/11/98 GJT at 73; Supplemental Materials
(H. Doc. 105-316) at 2895.
11. ``Okay. And I want to ask you about your discussion
with her concerning her [i.e. Betty Currie's] need for a
lawyer. Is that a matter over which you are asserting
privilege?'' Mills 8/11/98 GJT at 77; Supplemental Materials
(H. Doc. 105-316) at 2896
Questions on which Sidney Blumenthal asserted executive
privilege
1. ``What occurs at these 8:30 and 6:45 p.m., these daily
meetings [relating to the Lewinsky matter]?'' Blumenthal 2/26/
98 GJT at 12-13; Supplemental Materials (H. Doc. 105-316) at
161-62.
After abandoning this claim, Mr. Blumenthal testified that
in these meetings senior White House advisers discussed the
policy, political, legal, and media impact of various scandals
on the Administration and gave various examples of the kinds of
matters discussed. Blumenthal 6/4/98 GJT at 25-40; Supplemental
Materials (H. Doc. 105-316) at 179-82.
2. ``What information have you received from the President
[about Monica Lewinsky]?'' Blumenthal 2/26/98 GJT at 15;
Supplemental Materials (H. Doc. 105-316) at 162.
After abandoning this claim, Mr. Blumenthal testified that
the President told him that Ms. Lewinsky had made a sexual
advance on him and that he had rebuffed it. The President
further told him that Ms. Lewinsky had threatened to tell other
people that they had had an affair if he did not have sex with
her. The President also told him that he was never alone with
Ms. Lewinsky. Blumenthal 6/4/98 GJT at 49-50; Supplemental
Materials (H. Doc. 105-316) at 185.
3. ``Okay. Can you tell us what information you received
from Mrs. Clinton [about Monica Lewinsky]?'' Blumenthal 2/26/98
GJT at 15; Supplemental Materials (H. Doc. 105-316) at 162.
After abandoning this claim, Mr. Blumenthal testified that
the First Lady told him that the Lewinsky matter was a
political attack and that the President had simply been
ministering to a troubled young person. Blumenthal 6/4/98 GJT
at 46-53; Supplemental Materials (H. Doc. 105-316) at 184-86.
4. ``Okay. Did your attorneys, that is either the White
House or your private attorneys, indicate to you which
privilege--well, let me ask you the question first. What was
discussed? What was the substance of what was discussed
[between Mr. Blumenthal and the President about Monica
Lewinsky]?'' Blumenthal 2/26/98 GJT at 19; Supplemental
Materials (H. Doc. 105-316) at 163.
After abandoning this claim, Mr. Blumenthal testified that
the President told him that Ms. Lewinsky had made a sexual
advance on him and that he had rebuffed it. The President
further told him that Ms. Lewinsky had threatened to tell other
people that they had had an affair if he did not have sex with
her. The President also told him that he was never alone with
Ms. Lewinsky. Blumenthal 6/4/98 GJT at 49-50; Supplemental
Materials (H. Doc. 105-316) at 185. Blumenthal 6/25/98 GJT at
4-37; Supplemental Materials (H. Doc. 105-316) at 189-98.
5. ``What was the substance of the meeting with the First
Lady [about Monica Lewinsky]?'' Blumenthal 2/26/98 GJT at 25;
Supplemental Materials (H. Doc. 105-316) at 164.
After abandoning this claim, Mr. Blumenthal testified that
the First Lady told him that the Lewinsky matter was a
political attack and that the President had simply been
ministering to a troubled young person. Blumenthal 6/4/98 GJT
at 46-53; Supplemental Materials (H. Doc. 105-316) at 184-86.
6. ``Tell us about the ones [i.e. telephone conversations
with the First Lady about Monica Lewinsky] that you do
specifically recall?'' Blumenthal 2/26/98 GJT at 26;
Supplemental Materials (H. Doc. 105-316) at 164.
After abandoning this claim, Mr. Blumenthal testified that
he and the First Lady talked about matters in the media about
the investigation and not any material facts about Ms.
Lewinsky. Blumenthal 6/25/98 GJT at 58-59; Supplemental
Materials (H. Doc. 105-316) at 203. He later said they involved
leaks, tactics, and congressional reactions. Blumenthal 6/25/98
GJT at 62; Supplemental Materials (H. Doc. 105-316) at 204.
Questions on which Nancy Hernreich asserted executive
privilege
1. ``Okay. As best you recollect, could you tell us what
the conversation was about. Who said what?'' Hernreich 2/25/98
GJT at 37; Supplemental Materials (H. Doc. 105-316) at 1324.
(The question refers to Ms. Hernreich's conversation with the
President about Ms. Lewinsky.)
After abandoning the claim of privilege, Ms. Hernreich
testified that the President told her that he did not do
``this'' (i.e. have a relationship with Ms. Lewinsky) and that
the President had at some point mentioned that Ms. Lewinsky was
a friend of Walter Kaye. Hernreich 3/26/98 GJT at 12-13;
Supplemental Materials (H. Doc. 105-316) at 1341-42. Hernreich
6/16/98 GJT at 90-91; Supplemental Materials (H. Doc. 105-316)
at 1406-07.
2. Ms. Hernreich testified that she had been instructed by
White House attorneys to invoke executive privilege with
respect to any questions about conversations she may have had
with senior White House staff about Ms. Lewinsky. Hernreich 2/
25/98 GJT at 44-45; Supplemental Materials (H. Doc. 105-316) at
1325.
After abandoning this claim, Ms. Hernreich testified that
she may have had discussions with White House attorneys Cheryl
Mills or Lanny Breuer about Ms. Lewinsky, but she did not
recall the details. Hernreich 6/16/98 GJT at 53-54;
Supplemental Materials (H. Doc. 105-316) at 1400. Ms. Hernreich
also testified that she did not have any conversations with
senior staff about Ms. Lewinsky's efforts to return to a White
House job. Hernreich 6/16/98 GJT at 63-64; Supplemental
Materials (H. Doc. 105-316) at 1402.
3. Ms. Hernreich testified that she had been instructed by
White House attorneys to invoke executive privilege with
respect to any questions about conversations she may have had
with the President about Kathleen Willey. Hernreich 2/25/98 GJT
at 45-46; Supplemental Materials (H. Doc. 105-316) at 1325.
After abandoning this claim, Ms. Hernreich testified that
she had conversations with the President about the suicide of
Ms. Willey's husband and efforts to get Ms. Willey a job in the
White House. Hernreich 3/31/98 GJT at 104-08; Supplemental
Materials (H. Doc. 105-316) at 1384-85. She further testified
that later she had a conversation with the President in which
she informed him of a call from Ms. Willey in which Ms. Willey
informed Ms. Hernreich that a reporter was asking questions
about the Willey incident. Ms. Hernreich thought that the
President might have told her to relay this information to Mr.
Lindsey. Hernreich 6/16/98 GJT at 59-60; Supplemental Materials
(H. Doc. 105-316) at 1401.
4. ``Then my question to you is now: Tell the grand jurors
the content of those conversations, as you remember them. And
do you want to tell us that, or do you invoke privilege?''
Hernreich 2/25/98 GJT at 54; Supplemental Materials (H. Doc.
105-316) at 1326. (The question refers to Ms. Hernreich's
conversation with Bruce Lindsey about Ms. Lewinsky.)
After abandoning this claim, Ms. Hernreich testified that
she did not recall any discussions she had with Mr. Lindsey
about Ms. Lewinsky and Ms. Tripp. Hernreich 6/16/98 GJT at 51;
Supplemental Materials (H. Doc. 105-316) at 1400. She later
testified that she might have had ten to twenty conversations
with Mr. Lindsey about Ms. Lewinsky, but that only one or two
of them would have involved more than general mention of the
story in the press. Hernreich 6/16/98 GJT at 99-102;
Supplemental Materials (H. Doc. 105-316) at 1408.
5. Q. Okay. I'm not going to go to the content, but let me
explain the reason I'm asking it, because I thought as we
understood it, that the demarcation for Monica Lewinsky was
after the story broke--which would have been on or about
January 21st or 23rd, somewhere in that area.
So given that as what you've previously indicated as sort
of your framework for invoking executive privilege, the
conversations with Bruce Lindsey--I'm not going to ask you the
content, but did the conversation with Bruce Lindsey concern
Monica Lewinsky?
A. I would like to claim executive privilege on my
conversations with Bruce Lindsey.
Q. Even to as to identify the nature of the topic?
A. Yes. Hernreich 2/25/98 GJT at 61; Supplemental Materials
(H. Doc. 105-316) at 1328.
After abandoning this claim, Ms. Hernreich testified that
she did not recall any discussions she had with Mr. Lindsey
about Ms. Lewinsky. Hernreich 6/16/98 GJT at 51; Supplemental
Materials (H. Doc. 105-316) at 1400. She later testified that
she might have had ten to twenty conversations with Mr. Lindsey
about Ms. Lewinsky, but that only one or two of them would have
involved more than general mention of the story in the press.
Hernreich 6/16/98 GJT at 99-102; Supplemental Materials (H.
Doc. 105-316) at 1408.
6. Ms. Hernreich testified that these conversations did not
involve any national security, state secret, or official
governmental matters. Hernreich 2/25/98 GJT at 65-66;
Supplemental Materials (H. Doc. 105-316) at 1328.
IV. THE CONSTITUTIONAL PROCESS OF IMPEACHMENT
A. General Arguments About Impeachment
1. Constitutional provisions
The following provisions in the Constitution relate to
impeachment:
``The House of Representatives shall choose their Speaker
and other Officers; and shall have the sole Power of
Impeachment.'' U.S. Const. art. I, sec. 2.
``The Senate shall have the sole power to try all
Impeachments.'' U.S. Const. art. I, sec. 3, cl. 6.
``Judgment in Cases of Impeachment shall not extend further
than to removal from Office, and disqualification to hold and
enjoy any Office of honor, Trust or Profit under the United
States: but the party convicted shall nevertheless be liable
and subject to Indictment, Trial, Judgement and Punishment,
according to Law.'' U.S. Const. art. I, sec. 3, cl. 7.
``The President, Vice President and all civil Officers of
the United States, shall be removed from Office on Impeachment
for, and Conviction of, Treason, Bribery, or other high Crimes
and Misdemeanors.'' U.S. Const. art. II, sec. 4.
2. Impeachment is not removal from office
Some have suggested that impeachment is equivalent to
removal from office. This suggestion is patently false. Article
II of the Constitution specifies that the President ``shall be
removed from Office on Impeachment for, and Conviction of''
certain offenses. U.S. Const. art. II, sec. 4 (emphasis added).
The language is clear on its face.
Elsewhere the Constitution sets forth the procedure that is
to be used to address the derelictions of the President, and
that procedure demonstrates that impeachment is the charging
phase, and trial by the Senate is the conviction and removal
phase. Article I gives the House of Representatives ``the sole
Power of Impeachment,'' U.S. Const. art. I, sec. 2, and gives
the Senate ``the sole Power to try all Impeachments. When
sitting for that Purpose, they shall be on Oath or
Affirmation.'' U.S. Const. art. I, sec. 3. The Constitution
gives each House of Congress a specific duty: the House serves
as accuser, the Senate as judge.
Representative Barbara Jordan, a Democrat from Texas who
served on the Judiciary Committee during the impeachment
inquiry of President Richard Nixon, described this delegation
of duties as follows:
It is wrong, I suggest, it is a misreading of the
Constitution for any member here to assert that for a
member to vote for an article of impeachment means that
that member must be convinced that the president should
be removed from office. The Constitution doesn't say
that. The powers relating to impeachment are an
essential check in the hands of this body, the
legislature, against and upon the encroachment of the
executive. In establishing the division between the two
branches of the legislature, the House and the Senate,
assigning to the one the right to accuse and to the
other the right to judge, the framers of the
Constitution were very astute. They did not make the
accusers and the judges the same person.
Debate on Articles of Impeachment, p. 111 (1974).
At the Markup of the Articles of Impeachment, Chairman Hyde
echoed these thoughts:
The framers' decision to confine legislative
sanctioning of executive officials to removal upon
impeachment was carefully considered. By forcing the
House and Senate to act as a tribunal and a trial jury
rather than merely as a legislative body, they infused
the process with notions of due process. The
requirement of removal upon conviction accentuates the
magnitude of the procedure, encouraging serious
deliberation among Members of Congress.
Markup Session, Articles of Impeachment of William Jefferson
Clinton, Statement of Chairman Henry J. Hyde, December 12,
1998, at 172. It is abundantly clear that removal cannot occur
until the Senate's trial has concluded in conviction.
3. Impeachment Does Not Overturn an Election
One rhetorical device that has recently been employed by
some who oppose the impeachment of President Clinton is that
impeachment of the President will ``overturn the election.''
The suggestion is that the congressional majority is using
impeachment for political reasons--to undo a presidential
election in which their party did not succeed.
The success of this rhetorical strategy rests wholly on the
expectation that those to be persuaded by it will not read the
Constitution. The Twenty-Fifth Amendment to the Constitution,
which was ratified on February 10, 1967, states: ``In case of
the removal of the President from office or of his death or
resignation, the Vice President shall become President.'' Since
the vice presidential and presidential candidates run for
office on the same ticket, impeachment of the President could
not possibly result in a change of political party control in
the Executive. Any assertion to the contrary is patently false.
4. A Senate Trial of an Impeachment is a Constitutional Process
Another debating tactic recently employed by those who
oppose impeachment is to portray the trial in the Senate as an
unbearable exercise for the country. This tactic is undoubtedly
designed to alarm the public, and to aggravate the discomfort
already inherent in the notion of impeaching a president.
Representative Charles T. Canady addressed this argument on
December 12, 1998 during the debate on the motion to adopt a
joint resolution of censure:
Now, we have a responsibility to follow the
Constitution. Now, we have heard many suggestions about
what will happen if this President is impeached. We
have heard horror story after horror story. But do we
have such fear of following the path marked out for us
by the Constitution that we would take it upon
ourselves to go down a different path, a path of our
own choosing? Will we let our faith in the constitution
be put aside and overwhelmed by the fears that have
been feverishly propagated by the President's
defenders?
Now, there is no question that this is a momentous
issue. There is no question that impeaching a President
of the United States is a momentous act. But this is
not a legislative coup d'etat. This is a constitutional
process. . . . There is a great deal of evidence before
us, but in its essentials, this is a rather simple
case. It can be resolved by the Senate expeditiously.
We should reject the scare tactics, we should reject
the effort to have us turn away from our constitutional
duty, we should vote down this motion and move forward
with doing our duty in the House of Representatives.
Markup Session, Articles of Impeachment of William Jefferson
Clinton, Statement of Representative Charles T. Canady,
December 12, 1998, at 210-11.
It is clear that a Senate trial following impeachment would
not be an extraordinary event, but it would be a methodical
procedure of regular constitutional order. Those finding fault
with the idea of a trial are really faulting the Constitution,
and not those who believe President Clinton has committed
offenses deserving impeachment and removal.
b. articles of impeachment against president clinton
1. Article I--Grand Jury Perjury
a. Facts
Article I charges President Clinton with ``willfully
provid[ing] perjurious, false and misleading testimony'' to a
federal grand jury on August 17, 1998. A review of the judicial
impeachments of the 1980s makes it clear that when a president
knowingly makes false statements under oath, especially when
the statements meet the standards of perjury, he has committed
impeachable offenses. This is true whether or not the
statements are in regard to matters related to his official
duties.
The first article of impeachment against President Clinton,
in charging that he made perjurious, false and misleading
statements to a federal grand jury, can be challenged on two
other bases. The first, that the President's statements were
literally true, has already been dismissed. The second is that
the statements were not material to the matters being
considered by the grand jury convened by the Office of
Independent Counsel. As one of the matters the grand jury was
considering was the OIC's investigation of ``whether Monica
Lewinsky or others had violated federal law in connection with
the Jones v. Clinton case'', materiality would be determined by
whether the President's affair with Ms. Lewinsky was material
to that case. Referral from Independent Counsel Kenneth W.
Starr in Conformity with the Requirements of Title 28, United
States Code, Section 595(c), H.R. Doc. 105-310, 105th Cong., 2d
Sess. at 8 (1998).
Unfortunately for the President's argument, on May 26, the
United States Court of Appeals for District of Columbia Circuit
ruled that President Clinton's affair with Monica Lewinsky was
material to the Jones v. Clinton lawsuit. The court stated
that:
[Monica] Lewinsky tells us . . . the government could
not establish perjury because her denial of having had
a ``sexual relationship'' with President Clinton was
not ``material'' to the Arkansas proceeding [the Jones
case] within the meaning of 18 U.S.C. Sec. 1623(a); and
her affidavit containing this denial could not have
constituted a ``corrupt[] . . . endeavor[] to
influence'' the Arkansas district court. . . .
A statement is ``material'' if it ``has a natural
tendency to influence, or was capable of influencing,
the decision of the tribunal in making a [particular]
determination. . . . The ``central object'' of any
materiality inquiry is ``whether the misrepresentation
or concealment was predictably capable of affecting,
i.e., had a natural tendency to affect, the official
decision.'' . . . Lewinsky used the statement in her
affidavit . . . to support her motion to quash the
subpoena issued in the discovery phase of the [Jones]
litigation. District courts faced with such motions
must decide whether the testimony or material sought is
reasonably calculated to lead to admissible evidence
and, if so, whether the need for the testimony, its
probative value, the nature and importance of the
litigation, and similar factors outweigh any burden
enforcement of the subpoena might impose. . . . There
can be little doubt that Lewinsky's statements in her
affidavit were . . . ``predictably capable of
affecting'' the decision. She executed and filed her
affidavit for this very purpose.
In re Sealed Case, No. 98-3052, slip op. at 4-6 (D.C. Cir. May
26, 1998)(citations omitted).
It is true that the above opinion was in regard to whether
Ms. Lewinsky could quash a subpoena to produce items and
testify in the case of Jones v. Clinton regarding her alleged
affair with President Clinton. However, the reasons for which
the court upheld the subpoena as material to the Jones case are
directly applicable to whether Ms. Lewinsky's affidavit was
material to the Jones case. In both cases, the essential
question was whether Lewinsky's alleged affair with President
Clinton was material to the Jones case.
Why would Ms. Lewinsky's affair with President Clinton be
material to the Jones case? Because in ``he-said, she-said''
sexual harassment cases such as Paula Jones's, patterns of
conduct are important evidence in establishing that harassment
has in fact occurred. President Clinton's conduct in relation
to other subordinate employees--such as Ms. Lewinsky--could
help establish the veracity of Ms. Jones's claims.
b. Lessons from the Judicial Impeachments of the 1980s
The impeachments of three sitting federal judges in the
1980s provide compelling reasons to believe that President
Clinton committed impeachable offenses when he made perjurious,
false and misleading statements to the grand jury.
i. Federal Judges vs. Presidents
The argument is frequently made that offenses leading to
impeachment when committed by federal judges do not necessarily
rise to this level when committed by a president--the
argument's basis is said to be that the Constitution provides
that Article III judges ``shall hold their Offices during good
Behavior,'' U.S. Const. art. III, Sec. 1, and thus that judges
are impeachable for ``misbehavior'' while other federal
officials are only impeachable for treason, bribery, and other
high crimes and misdemeanors.
The staff of the House Judiciary Committee in the 1970s and
the National Commission on Judicial Discipline and Removal in
the 1990s have both rejected this argument. In 1974, the staff
of the Judiciary Committee's Impeachment Inquiry issued a
report which asked whether the good behavior clause ``limit[s]
the relevance of the . . . impeachments of judges with respect
to presidential impeachment standards as has been argued by
some[.]'' Staff of House Comm. on the Judiciary, 93rd Cong., 2d
Sess., Constitutional Grounds for Presidential Impeachment
(Comm. Print 1974) at 17. The staff concluded that: ``It does
not. . . . [T]he only impeachment provision . . . included in
the Constitution . . . applies to all civil officers, including
judges, and defines impeachment offenses as `Treason, Bribery,
and other high Crimes and Misdemeanors.' '' Id.
The conclusion of the staff report is bolstered by the
findings of the National Commission on Judicial Discipline and
Removal, chaired by Robert Kastenmeier, former Chairman of the
Committee's Subcommittee on Courts, Civil Liberties and the
Administration of Justice and one of the House managers during
the Senate trial of U.S. District Court Judge Harry Claiborne.
The Commission concluded that ``the most plausible reading of
the phrase `during good Behavior' is that it means tenure for
life, subject to the impeachment power. . . . The ratification
debates about the federal judiciary seem to have proceeded on
the assumption that good-behavior tenure meant removal only
through impeachment and conviction.'' National Commission on
Judicial Discipline and Removal, Report of the National
Commission on Judicial Discipline and Removal 17-18
(1993)(footnote omitted).
The record of the 1986 impeachment of Judge Claiborne also
argues against different standards for impeachable offenses
when committed by federal judges as when committed by
presidents. Judge Claiborne filed a motion asking the Senate to
dismiss the articles of impeachment against him for failure to
state impeachable offenses. One of the motion's arguments was
that ``[t]he standard for impeachment of a judge is different
than that for other officers'' and that the Constitution
limited ``removal of the judiciary to acts involving misconduct
related to discharge of office.'' Memorandum in Support of
Motion to Dismiss the Articles of Impeachment on the Grounds
They Do Not State Impeachable Offenses 4 (hereinafter cited as
``Claiborne Motion''), reprinted in Hearings Before the Senate
Impeachment Trial Committee, 99th Cong., 2d Sess. 245
(1986)(hereinafter cited as ``Senate Claiborne Hearings'').
Judge Claiborne's attorney stated to the Senate trial
committee that:
[B]ecause of the separation of powers contemplated by
the framers . . . the standard for impeachment of a
Federal judge is distinct from the standard of
impeachment for the President, Vice President, or other
civil officers of the United States because as we know,
under article II, section 4, the President, Vice
President, and civil officers may be removed on
impeachment for [and] conviction of treason, bribery,
or other high crimes and misdemeanors.
It is our contention that the Federal judiciary, in
order to remain an independent branch, has a different
standard, a separate and distinct standard, as far as
the ability or the disability to be impeached, and that
is that the impeachment process would take place if in
fact the judge, who is the sole . . . lifetime
appointment of all the officers which are referred to
in the Constitution, is not on good behavior, a
separate and distinct standard than that which is
applicable to the elected officials and the officials
who are appointed for a specific term.
Senate Claiborne Hearings at 76-77 (statement of Oscar
Goodman).
Judge Claiborne's attorney was arguing that federal judges
are not ``civil officers'' and thus that the impeachment
standard in article II, section 4, does not apply; instead,
``misbehavior'' would be the grounds for impeaching a federal
judge. Id. at 78-79. See also Claiborne Motion at 3-4. He
admitted his theory would fall if the Senate concluded that a
federal judge was a civil officer. Senate Claiborne Hearings at
79.
Representative Kastenmeier responded that ``reliance on the
term `good behavior' as stating a sanction for judges is
totally misplaced and virtually all commentators agree that
that is directed to affirming the life tenure of judges during
good behavior. It is not to set them down, differently, as
judicial officers from civil officers.'' Id. at 81-82. He
further stated that ``[n]or . . . is there any support for the
notion that . . . Federal judges are not civil officers of the
United States, subject to the impeachment clause of article II
of the Constitution.'' Id. at 81.
Kastenmeier's argument was repeated by the House of
Representatives. U.S. House of Representatives, Opposition to
Motion to Dismiss Articles of Impeachment for Failure to State
Impeachable Offenses (hereinafter cited as ``Opposition to
Claiborne Motion''), reprinted in Senate Claiborne Hearings at
441. The House stated that:
If lack of good behavior were the sole standard for
impeaching federal judges, then a different standard
would apply to civil officers other than judges.
Nowhere in the proceedings of the Constitutional
Convention was such a distinction made. On the
contrary, the proceedings of the Convention show an
intention to limit the grounds of impeachment for all
civil officers, including federal judges, to those
contained in Article II.
On August 20, 1787, a committee was directed to
report on ``a mode of trying the supreme Judges in
cases of impeachment.'' The committee reported back on
August 22 that ``the Judges should be triable by the
Senate.'' . . . Several days later, a judicial removal
provision was added to the impeachment clause. On
September 8, 1787, the judicial removal clause was
deleted and the impeachment clause was expanded to
include the Vice President and all civil officers. . .
. In so doing, the Constitutional Convention rejected a
dual test of ``misbehavior'' for judges and ``high
crimes and misdemeanors'' for all other federal
officials.
In Federalist No. 79, Alexander Hamilton confirmed this
reading of the Convention's actions with respect to the
impeachment standard:
The precautions for [judges'] responsibility, are
comprised in the article respecting impeachments. . . .
This is the only provision on the point, which is
consistent with the necessary independence of the
judicial character, and is the only one which we find
in our Constitution with respect to our own judges.
Opposition to Claiborne Motion at 6-7 (citations omitted).
The Senate never voted on Claiborne's motion. However, the
Senate was clearly not swayed by the arguments contained
therein because the body later voted to convict Judge
Claiborne. 132 Con. Rec. S15,760-62 (daily ed. Oct. 9, 1986).
The Senate thus rejected the claim that the standard of
impeachable offenses was different for judges than for
presidents. It can thus be reliably stated that both federal
judges and U.S. presidents are impeachable for the same
misdeeds: ``Treason, Bribery, and other high Crimes and
Misdemeanors''.
One additional argument can be made in an effort to
differentiate the standards of impeachment for judges and
presidents. While both judges and presidents are impeachable
for committing ``Treason, Bribery, and other high Crimes and
Misdemeanors'', it might be argued that certain high crimes
such as perjury are more detrimental when committed by judges
and therefore only impeachable when committed by judges. Thus,
one article of impeachment against Judge Claiborne charged that
he was ``required to discharge and perform all the duties
incumbent on him and to uphold and obey the Constitution and
laws of the United States'' and was ``required to uphold the
integrity of the judiciary and to perform the duties of his
office impartially'' and that by willfully and knowingly
falsifying his income on his tax returns, he had ``betrayed the
trust of the people of the United States and reduced confidence
in the integrity and impartiality of the judiciary, thereby
bringing disrepute on the Federal courts and the administration
of justice by the courts.'' Id. Judges must lead by example in
convincing witnesses before their courts to testify truthfully,
and they must be viewed as impartial when deciding issues in
cases--thus it is devastating when they are viewed as being
less than truthful.
This argument fails because it is just as devastating to
our system of government when presidents commit perjury. As the
Judiciary Committee stated in justifying an article of
impeachment against President Nixon, the President not only has
``the obligation that every citizen has to live under the
law[,]'' but in addition has the duty ``not merely to live by
the law but to see that law faithfully applied[.]'' Impeachment
of Richard M. Nixon, President of the United States, H.R. Rep.
No. 93-1305, 93rd Cong., 2d Sess. at 180 (1974) (hereinafter
cited as ``Impeachment of Richard M. Nixon''). The Constitution
provides that he ``shall take Care that the Laws be faithfully
executed.'' U.S. Const. art. II, Sec. 3. As Justice Felix
Frankfurter has stated, this is ``the embracing function of the
President.'' Id. at 180, quoting Youngstown Sheet and Tube Co.
v. Sawyer, 343 U.S. 579, 610 (1952) (Frankfurter, J.,
concurring). When a president, as chief law enforcement officer
of the United States, commits perjury, he violates this
constitutional oath unique to his office and casts doubt on the
notion that we are a nation ruled by laws and not men.
ii. Perjurious, False and Misleading Statements Made Under
Oath or Subject to Penalty for Perjury
a. Judge Harry Claiborne
When Judge Harry Claiborne was impeached, he was serving a
sentence in federal prison for filing false federal income tax
returns for 1979 and 1980. Judge Claiborne had signed written
declarations that the returns were made under penalty of
perjury. A jury had found beyond a reasonable doubt that Judge
Claiborne had failed to report substantial income in violation
of federal law.
The Senate convicted Judge Claiborne of three articles of
impeachment. 132 Cong. Rec. S15,760-62 (daily ed. Oct. 9,
1986). The first article had charged that, while serving as a
federal judge, Judge Claiborne willfully and knowingly filed
under penalty of perjury an income tax return for 1979, which
he did not believe to be true and correct as to every material
matter in that it substantially understated his income. Id. The
second article had charged that he had done the same with his
income tax return for 1980. Id. The third article was mentioned
in the previous section.
The first two articles of impeachment charged Judge
Claiborne not only with making false statements, but with
making perjurious statements. This can be inferred from the
fact that the first two articles stated two crucial
requirements of perjury, that a falsehood be made knowingly,
and that it be ``material.'' A person is guilty of perjury if
in a proceeding before or ancillary to any court or grand jury
of the United States, he knowingly makes any false material
declaration under oath. 18 U.S.C. Sec. 1623(a)(1994 & Supp.
1996). A general perjury provision is found at 18 U.S.C.
Sec. 1621. Section 1621 requires that the defendant
``willfully'' make a false statement. Under this section, the
prosecution must present at least two independent witnesses or
one witness with corroborating evidence. See Hammer v. United
States, 271 U.S. 620, 626 (1926). The prosecution does not have
to meet this ``two witness rule'' under Sec. 1623.
To be material, a statement must have ``a natural tendency
to influence, or [be] capable of influencing, the decision of
the decisionmaking body to which it was addressed.'' Kungys v.
United States, 485 U.S. 759, 770 (1988)(quotation marks
omitted)(While Kungys dealt with materiality under the
Immigration and Nationality Act, the Court stated that ``[t]he
federal courts have long displayed a quite uniform
understanding of the `materiality' concept as embodied in such
statutes.'' Id. See United States v. Dickerson, 114 F.3d 464,
466 (4th Cir. 1997), for a section 1623 case involving
testimony before a grand jury with a similar definition of
materiality.). Of course, the statement must influence the body
on the subject before it. See United States v. Cosby, 601 F.2d
754, 756 n.2 (5th Cir. 1979). Materiality is determined at the
time of the testimony, and ``subsequent events do not eliminate
that materiality.'' See United States v. Manfredonia, 414 F.2d
760, 765 (2d Cir. 1969) (footnote omitted).
b. Judge Walter Nixon
U.S. District Court Judge Walter L. Nixon, Jr., was
impeached in 1989. At the time of his impeachment, he was
serving a sentence in federal prison for committing perjury
before a federal grand jury. A federal jury had convicted Judge
Nixon of two counts of perjury while acquitting him of the
underlying illegal gratuity count. He committed the perjury in
an attempt to conceal his involvement with an aborted state
prosecution for drug smuggling against the son of a man who had
benefitted Judge Nixon financially with a ``sweetheart'' oil
and gas investment. The Senate convicted Judge Nixon of two
articles of impeachment, which were both based on Nixon's
perjurious testimony. Proceedings of the United States Senate
in the Impeachment Trial of Walter L. Nixon, Jr., a Judge of
the United States District Court for the Southern District of
Mississippi, S. Doc. No. 101-22, 101st Cong., 1st Sess. 432-35
(1989). The first article upon which he was convicted found
that in testimony before the federal grand jury investigating
Judge Nixon's business relationship with an individual and a
state prosecutor's handling of a drug smuggling prosecution of
that individual's son, Judge Nixon knowingly made a material
false or misleading statement in violation of his oath to tell
the truth to the effect that he never discussed the prosecution
with the state prosecutor. Id. at 432-35. The second article
upon which he was convicted found that in testimony before the
same grand jury, Judge Nixon knowingly made a material false or
misleading statement in violation of his oath to tell the truth
to the effect that he never talked to anyone that in any way
influenced anyone with respect to the drug smuggling case. Id.
As in the case of Judge Claiborne, the articles of
impeachment against Judge Nixon charged him not only with
making false statements, but with making perjurious statements.
This can be inferred from the fact that the two articles stated
two crucial requirements of perjury, that a falsehood be made
knowingly, and that it be ``material.'' Of course, the federal
jury had found that he had met these two requirements by
convicting him of perjury.
c. Judge Alcee Hastings
U.S. District Court Judge Alcee L. Hastings was impeached
in 1989. In 1983, a federal jury acquitted Judge Hastings of
charges that he and a friend had conspired to solicit a
$150,000 bribe from defendants in a racketeering and
embezzlement case heard by Judge Hastings in exchange for
lenient sentencing. However, in a separate trial, a jury had
convicted his alleged co-conspirator on these charges and it
was alleged that Judge Hastings won acquittal by lying on the
witness stand.
Judge Hastings was found guilty by the Senate on seven of
twelve articles of impeachment involving false testimony and on
an article stating that he was a participant in the bribery
conspiracy. 135 Cong. Rec. 25,330-35 (1989). The seven ``false
testimony'' articles alleged that Judge Hastings knowingly made
false statements under oath intending to mislead the trier of
fact regarding whether he had (1) entered into an agreement to
seek the $150,000 bribe from the defendants, (2) agreed to
modify the sentences of the defendants in return for the bribe,
(3) agreed in connection with the bribe to return property to
the defendants that he had previously ordered forfeited, (4)
appeared at a hotel to demonstrate his participation in the
bribery scheme, (5) instructed his law clerk to prepare an
order returning property to the defendants in the racketeering
and embezzlement case in furtherance of the bribery scheme, (6)
conducted a telephone conversation with his co-conspirator in
furtherance of the bribery scheme, and (7) fabricated certain
letters in an effort to hide the bribery scheme. 134 Cong. Rec.
20,206-07 (1988).
Since the articles of impeachment did not charge that Judge
Hastings's false statements met a materiality standard, it can
be inferred that Congress did not endeavor to impeach him for
perjury, but only for making false statements. However, it
seems obvious that the false statements made by Judge Hastings
would have been found by a court to be material.
d. Conclusion
The recent judicial impeachments make clear that perjury is
an impeachable offense. This is not surprising given that
courts have long emphasized the destructiveness of perjury to
the judicial system. The Supreme Court has stated that
``[p]erjured testimony is an obvious and flagrant affront to
the basic concepts of judicial proceedings[,]'' United States
v. Mandujano, 425 U.S. 564, 576 (1976), that ``[f]alse
testimony in a formal proceeding is intolerable,'' and that
``[p]erjury should be severely sanctioned in appropriate
cases.'' ABF Freight System v. NLRB, 510 U.S. 317, 323 (1994).
iii. Conduct not Related to Official Duties
The record of Judge Claiborne's impeachment proceedings
make it clear that an individual can be impeached for conduct
not related to his or her official duties. Hamilton Fish,
ranking member of the Judiciary Committee and one of the House
managers in the Senate trial, stated that ``[i]mpeachable
conduct does not have to occur in the course of the performance
of an officer's official duties. Evidence of misconduct,
misbehavior, high crimes, and misdemeanors can be justified
upon one's private dealings as well as one's exercise of public
office. That, of course, is the situation in this case.'' 132
Cong. Rec. H4713 (daily ed. July 22, 1986).
Representative Fish's views were reinforced by now chairman
of the Judiciary Committee and then House manager Henry Hyde,
who stated that ``the decision to impeach and convict . . .
stands as an admonition to others in public life. It is an
opportunity for Congress to restate and reemphasize the
standards of both personal and professional conduct expected of
those holding high Federal office.'' 132 Cong. Rec. H4716
(daily ed. July 22, 1986). House manager Romano Mazzoli stated
that impeachment reached ``corruption, maladministration, gross
neglect of duties and other public and private improprieties
committed by judges and high Government officials which
rendered them unfit to continue in office.'' 132 Cong. Rec.
H4717 (daily ed. July 22, 1986).
Additional evidence that personal misconduct can lead to
impeachment is provided by the fact that Judge Claiborne's
motion that the Senate dismiss the articles of impeachment for
failure to state impeachable offenses was unsuccessful. One of
the arguments his attorney made for the motion was that ``there
is no allegation . . . that the behavior of Judge Claiborne in
any way was related to misbehavior in his official function as
a judge; it was private misbehavior.'' Senate Claiborne
Hearings at 77 (statement of Judge Claiborne's counsel, Oscar
Goodman). See also Claiborne Motion at 3.
Representative Kastenmeier responded by stating that ``it
would be absurd to conclude that a judge who had committed
murder, mayhem, rape, or perhaps espionage in his private life,
could not be removed from office by the U.S. Senate.'' Senate
Claiborne Hearings at 81. Kastenmeier's response was repeated
by the House of Representatives in its pleading opposing
Claiborne's motion to dismiss. Opposition to Claiborne Motion
at 2.
The House went on to state that:
[Claiborne's] narrow view of impeachable offenses expressly
was offered and rejected by the Framers of the Constitution.
. . . As originally drafted, the impeachment clause
provided that the President should be ``removable on
impeachment and conviction of malpractice or neglect of duty.''
. . . The provision was subsequently revised to make the
President impeachable for ``treason, bribery or corruption.''
. . . Colonel Mason moved to add the phrase ``or
maladministration'' after ``bribery.'' . . . In response, James
Madison objected that ``maladministration'' was too narrow a
standard. Mason soon withdrew his amendment and substituted the
phrase ``or other high crimes and misdemeanors.'' This
formulation was accepted, along with an amendment to extend the
impeachment sanction to the Vice President and all other civil
officers. . . . The Framers thus rejected . . . the concepts of
professional ``malpractice'' or ``maladministration'' as the
sole basis for the impeachment of federal officials.
The contrary position urged by Judge Claiborne is
incompatible with common sense and the orderly conduct of
government. Little can be added to the succinct argument of
Representative Clayton in 1913 on this identical point, during
the impeachment proceedings involving Judge Charles Swayne:
. . . [The contention is that] however serious the
crime, the misdemeanor, or misbehavior of the judge may
be, if it can be said to be extrajudicial, he cannot be
impeached. To illustrate this contention, the judge may
have committed murder or burglary and be confined under
a sentence in a penitentiary for any period of time,
however long, but because he has not committed the
murder or burglary in his capacity as judge he cannot
be impeached. That contention, carried out logically,
might lead to the very defeat of the performance of the
function confided to the judicial branch of the
government.
. . . As also noted in one commentary:
An act or a course of misbehavior which renders
scandalous the personal life of a public officer,
shakes the confidence of the people in his
administration of the public affairs, and thus impairs
his official usefulness, although it may not directly
affect his official integrity or otherwise incapacitate
him properly to perform his ascribed functions.
Thus, Judge Claiborne's argument is both inaccurate and
illogical in its extraordinary premise that a federal judge may
intentionally commit a felonious act outside his judicial
functions and automatically find protection from the
impeachment sanction.
Id. at 3-5 (citations omitted) (emphasis in original).
Senator Charles Mathias, Jr., chairman of the impeachment
trial committee, referred Judge Claiborne's motion to the full
Senate, it having jurisdiction over the articles of
impeachment. Senate Claiborne Hearings at 113. He did state,
however, that:
[I]t is my opinion . . . that the impeachment power
is not as narrow as Judge Claiborne suggests. There is
neither historical nor logical reason to believe that
the Framers of the Constitution sought to prohibit the
House from impeaching . . . an officer of the United
States who had committed treason or bribery or any
other high crime or misdemeanor which is a serious
offense against the government of the United States and
which indicates that the official is unfit to exercise
public responsibilities, but which is an offense which
is technically unrelated to the officer's particular
job responsibilities.
Id. at 113-14.
The Senate never voted on Judge Claiborne's motion.
However, the Senate was clearly not swayed by the arguments
contained therein because the body later voted to convict Judge
Claiborne. 132 Con. Rec. S15,760-62 (daily ed. Oct. 9, 1986).
The Senate thus agreed with the House that private
improprieties could be, and were in this instance, impeachable
offenses.
The Claiborne case makes clear that perjury, even if it
relates to a matter wholly separated from a federal officer's
official duties--as to a judge's tax returns--is an impeachable
offense. Judge Nixon's false statements were also in regards to
a matter distinct from his official duties. Of course, the
false statements made by Judge Hastings were intimately related
to his official duties, as they were in regard to one of his
cases.
2. Article II--Perjury in the Civil Case
Article II charges President Clinton with willfully
providing perjurious, false and misleading testimony in sworn
answers to written questions asked as part of a federal civil
rights action brought against him by Paula Jones, and in a
deposition given as part of that action. These actions are
impeachable offenses no less than is President Clinton's
perjurious, false and misleading testimony to a federal grand
jury.
First, as previously stated, a person is guilty of perjury
if in a proceeding before or ancillary to any court or grand
jury of the United States, he knowingly makes any false
material declaration under oath. A federal civil deposition is
such an ancillary proceeding. See, e.g., United States v.
Wilkinson, 137 F.3d 214, 225 (4th Cir. 1998), cert. denied 119
S.Ct. 172 (1998); United States v. McAfee, 8 F.3d 1010, 1014
(5th Cir. 1993). Thus, the actions of President Clinton alleged
in this article can constitute perjury under federal law.
Second, perjury in civil proceedings is just as pernicious
as perjury in criminal proceedings. The Eleventh Circuit has
stated that ``[w]e categorically reject any suggestion,
implicit or otherwise, that perjury is somehow less serious
when made in a civil proceeding. Perjury, regardless of the
setting, is a serious offense that results in incalculable harm
to the functioning and integrity of the legal system as well as
to private individuals.'' United States v. Holland, 22 F.3d
1040, 1047 (11th Cir. 1994), cert. denied 513 U.S. 1109 (1995).
Third, certain federal circuits apply a loose definition of
materiality to statements made in civil depositions because
they are investigatory in nature. For instance, the Second
Circuit in stated that ``we see no persuasive reason not to
apply the broad standard for materiality of whether a truthful
answer might reasonably be calculated to lead to the discovery
of evidence admissible at the trial of the underlying suit.''
United States v. Kross, 14 F.3d 751, 754 (2d Cir. 1994) (a
section 1623 case). See contra United States v. Adams, 870 F.2d
1140, 1147 (6th Cir. 1989) (a section 1623 case) (The test is
``whether a truthful statement might have assisted or
influenced the tribunal in its inquiry.''). The Fifth Circuit
stated that ``[o]rdinarily, there would appear to be no
sufficient reason why a deponent should not be held to his oath
with respect to matters properly the subject of and material to
the deposition, even if the information elicited might
ultimately turn out not to be admissible at the subsequent
trial. United States v. Holley, 942 F.2d 916, 924 (5th Cir.
1991), aff'd after retrial, 986 F.2d 100 (1993) (a section 1623
case). In assessing the materiality of statements made in a
discovery deposition, some account must be taken of the more
liberal rules of discovery.
3. Article III--Obstruction of Justice
Article III charges that President Clinton has ``prevented,
obstructed, and impeded the administration of justice, and has
to that end engaged personally, and through his subordinates
and agents, in a course of conduct or scheme designed to delay,
impede, cover up, and conceal the existence of evidence and
testimony related to a Federal civil rights action brought
against him . . . .''
a. Lessons from the Impeachment of President Nixon
This article finds clear precedent in the first article of
impeachment the Judiciary Committee approved against President
Richard Nixon. That article charged President Nixon with
interfering with the investigation of events relating to the
June 17, 1972, unlawful entry at the Washington, D.C.
headquarters of the Democratic National Committee for the
purpose of securing political intelligence.
Using the powers of his office, the president ``engaged
personally and through his subordinates and agents, in a course
of conduct or plan designed to delay, impede, and obstruct the
investigation of such unlawful entry; to cover up, conceal and
protect those responsible; and to conceal the existence and
scope of other unlawful covert activities.'' The article
charged that implementation of the course of conduct included
(1) making or causing to be made false or misleading statements
to investigative officers and employees of the United States,
(2) withholding relevant and material evidence or information
from such persons, (3) approving, condoning, acquiescing in,
and counseling witnesses with respect to the giving of false or
misleading statements to such persons as well as in judicial
and congressional proceedings, (4) interfering or endeavoring
to interfere with the conduct of investigations by the
Department of Justice, the Federal Bureau of Investigation, the
Office of Watergate Special Prosecution Force and congressional
committees, (5) approving, condoning, and acquiescing in
surreptitious payments for the purpose of obtaining the silence
of or influencing the testimony of witnesses, potential
witnesses or participants in the unlawful entry or other
illegal activities, (6) endeavoring to misuse the Central
Intelligence Agency, (7) disseminating information received
from the Department of Justice to subjects of investigations,
(8) making false or misleading public statements for the
purpose of deceiving the people of the United States into
believing that a thorough investigation of ``Watergate'' had
taken place, and (9) endeavoring to cause prospective
defendants and persons convicted to expect favored treatment or
rewards in return for silence or false testimony. Impeachment
of Richard M. Nixon at 2-3.
Article III against President Clinton states that ``[t]he
means used to implement this course of conduct or scheme
included one or more of '' seven acts. The first alleged act by
President Clinton, ``corruptly encourag[ing] a witness in a
Federal civil rights action brought against him to execute a
sworn affidavit in that proceeding that he knew to be
perjurious, false and misleading'', and the second alleged act,
``corruptly encourag[ing] a witness in a Federal civil rights
action brought against him to give perjurious, false and
misleading testimony[,]'' are clearly analogous to the third
alleged act of President Nixon. The fourth alleged act by
President Clinton was his that he ``intensified and succeeded
in an effort to secure job assistance to a witness in a Federal
civil rights action brought against him in order to corruptly
prevent the truthful testimony of that witness . . . .'' This
is clearly analogous to the fifth alleged act of President
Nixon.
b. Federal Obstruction of Justice Statutes
There are two federal obstruction of justice statutes. The
first, section 1503 of title 18 of the United States Code,
states, in relevant part, that ``[w]hoever . . . corruptly, or
by threats or force . . . influences, obstructs, or impedes, or
endeavors to influence, obstruct, or impede, the due
administration of justice, shall be punished . . . .'' 18
U.S.C. Sec. 1503(a)(1994 & Supp. 1997). The proscribed actions
must relate to a pending judicial process. See, e.g., United
States v. Walasek, 527 F.2d 676, 678 (3rd Cir. 1975). The
pending judicial process can be a civil action. See, e.g., Falk
v. United States, 370 F.2d 472, 476 (9th Cir. 1967), cert.
denied 387 U.S. 926 (1967).
The Fifth Circuit has stated that:
Whatever can be accomplished through intimidating or
influencing a witness, juror, or court official is
labeled by section 1503 as an obstruction of justice,
for the reason that each of these actors has certain
duties imposed by law, and the interference with his
performance of these duties necessarily disrupts the
processes of the criminal justice system.
United States v. Howard, 569 F.2d 1331, 1333-34 (5th Cir.
1978)(footnote omitted), cert. denied 439 U.S. 834 (1978). Even
soliciting a merely prospective witness may provide the basis
for a conviction. See United States v. Friedland, 660 F.2d 919,
931 (3rd Cir. 1981), cert. denied 456 U.S. 989 (1982); Falk v.
United States, 370 F.2d at 476.
The second statute, section 1512 of title 18 of the United
States Code, states, in relevant part, that:
Whoever . . . corruptly persuades another person, or
attempts to do so, or engages in misleading conduct
toward another person, with intent to . . . influence,
delay, or prevent the testimony of any person in an
official proceeding . . . [or] cause or induce any
person to . . . withhold testimony, or withhold a
record, document, or other object from an official
proceeding . . . shall be [punished].
18 U.S.C. Sec. Sec. 1512(b)(1)-(2)(1994 & Supp. 1996). Either
of the two statutes can be used in the case of witness
tampering. See, e.g., United States v. Maloney, 71 F.3d 645,
659 (7th Cir. 1995), cert. denied 117 S.Ct. 295 (1996); United
States v. Tackett, 113 F.3d 603, 611 (6th Cir. 1997), cert.
denied 118 S.Ct. 879 (1998).
The first alleged act by President Clinton, ``corruptly
encourag[ing] a witness in a Federal civil rights action
brought against him to execute a sworn affidavit in that
proceeding that he knew to be perjurious, false and
misleading'', and the second alleged act, ``corruptly
encourag[ing] a witness in a Federal civil rights action
brought against him to give perjurious, false and misleading
testimony[,]'' clearly violate both statutes. The third alleged
act, ``corruptly engag[ing] in, encourag[ing] or [supporting] a
scheme to conceal evidence that had been subpoenaed in a
Federal civil rights action brought against him[,]'' clearly
violates the second statute. The fourth alleged act, that
President Clinton ``intensified and succeeded in an effort to
secure job assistance to a witness in a Federal civil rights
action brought against him in order to corruptly prevent the
truthful testimony of that witness[,]'' clearly violates both
statutes. The sixth alleged act, ``relat[ing] a false and
misleading account of events relevant to a Federal civil rights
action brought against him to a potential witness in that
proceeding, in order to corruptly influence the testimony of
that witness[,]'' and the seventh alleged act, ``ma[king] false
and misleading statements to potential witnesses in a Federal
grand jury proceeding in order to corruptly influence the
testimony of those witnesses[,]'' clearly violate both
statutes. ``The most obvious example of a Sec. 1512 violation
may be the situation where a defendant tells a potential
witness a false story as if the story were true, intending that
the witness believe the story and testify to it before the
grand jury.'' United States v. Rodolitz, 786 F.2d 77, 82 (2d
Cir. 1986), cert. denied 479 U.S. 826 (1986).
4. Article IV--Abuse of Power
Article IV charges President Clinton with ``refus[ing] and
fail[ing] to respond to certain written requests for admission
and willfully ma[king] perjurious, false and misleading sworn
statements in response to certain written requests for
admission . . . .'' In doing such, the President ``assumed to
himself functions and judgments necessary to the exercise of
the sole power of impeachment invested by the Constitution in
the House of Representatives''--the Constitution provides that
``the House of Representatives . . . shall have the sole Power
of Impeachment'' U.S. Const. art. I, Sec. 2, cl. 5--and thus
warrants impeachment. Chairman Hyde made the written request
for 81 admissions by letter dated November 5, 1998. The gravity
of the request was made clear by the facts that the answers
were to be under oath, Letter from Henry J. Hyde to U.S.
President William J. Clinton (Nov. 5, 1998), and that if a
response was not provided by President Clinton, the Judiciary
Committee would have subpoenaed it. Chairman Hyde sent a letter
to the President stating that ``[i]f the Committee is not
provided complete and specific answers to [the 81 questions] by
Monday, November 30, I have no course but to urge the full
Committee to subpoena those answers.'' Letter from Henry J.
Hyde to U.S. President William J. Clinton 2 (Nov. 25, 1998).
Far from representing novel grounds for impeachment,
Article IV finds clear precedent in the third article of
impeachment that the Judiciary Committee approved in the case
of President Richard Nixon. That article found that President
Nixon had committed impeachable offenses by failing to
``produce papers and things as directed by duly authorized
subpoenas issued by the Committee on the Judiciary'' and
``willfully disobey[ing] such subpoenas.'' The items subpoenaed
were needed to ``resolve . . . fundamental, factual questions
relating to Presidential direction, knowledge or approval of
actions demonstrated by other evidence to be substantial
grounds for impeachment of the President.'' The Article found
that the President:
In refusing to produce these papers and things . . .
substitut[ed] his judgment as to what materials were
necessary for the inquiry, interposed the powers of the
presidency against the lawful subpoenas of the House of
Representatives, thereby assuming to himself functions
and judgments necessary to the exercise of the sole
power of impeachment vested by the Constitution in the
House of Representatives[, and thus warrants
impeachment].
Impeachment of Richard M. Nixon at 188.
The Committee found that by not providing the subpoenaed
information, President Nixon ``interfer[ed] with the discharge
of the Committee's responsibility to investigate fully and
completely whether sufficient grounds exist[ed] to impeach
him.'' Id. at 189. In addition, his ``defiance of the Committee
forced it to deliberate and make judgments on a record that . .
. was `incomplete'.'' Id. at 190. The President ``is obligated
to supply . . . relevant evidence necessary for Congress to
exercise its constitutional responsibility in an impeachment
proceeding.'' Id. at 213. Finally, as Chairman Rodino stated in
a letter to President Nixon:
Under the Constitution it is not within the power of
the President to conduct an inquiry into his own
impeachment, to determine which evidence, and what
version or portion of that evidence, is relevant and
necessary to such an inquiry. These are matters which,
under the Constitution, the House has the sole power to
determine.
Id. at 194, quoting letter from Chairman Rodino to President
Richard M. Nixon (May 30, 1974).
By refusing and failing to respond to some of the Judiciary
Committee's requests for admissions, and by answering others in
a perjurious, false and misleading fashion, President Clinton
committed acts and omissions of the same nature as those
committed by President Nixon. The 81 requests for admissions
went to facts at the heart of the conduct which form the basis
of the Committee's impeachment investigation. That full and
truthful responses were crucial to the investigation was made
clear by the fact that responses were made under oath and, had
they not been forthcoming, would have been compelled by
subpoena. The information requested was clearly as important to
the Committee's investigation in 1998 as were the items sought
to be subpoenaed by the Committee in 1974.
Where President Clinton failed to respond, he, just as
President Nixon, took it upon himself, as Chairman Rodino had
stated, to ``determine which evidence, and what version or
portion of that evidence, is relevant and necessary to such an
inquiry.'' President Clinton assumed to himself functions and
judgments necessary to the exercise of the sole power of
impeachment vested by the Constitution in the House of
Representatives and thereby committed impeachable offenses.
President Clinton did no less when he provided the
Committee with perjurious, false and misleading responses to
other requests for admissions. It is ludicrous to suppose that
it is impeachable to fail to provide certain requested
information, yet at the same time not impeachable to provide
false information. For it is probable that President Clinton
caused more harm to the Committee's investigation by providing
false responses than he would have by providing no responses at
all. Just as with President Nixon, he showed contempt for the
legislative branch and impeded Congress's exercise of its
Constitutional responsibility, thus justifying impeachment.
V. COMMITTEE CONSIDERATION OF IMPEACHMENT PROCEEDINGS
On January 16, 1998, in response to Attorney General Janet
Reno's request, the Special Division of the United States Court
of Appeals for the District of Columbia Circuit, expanded the
jurisdiction of Independent Counsel Kenneth W. Starr. The
Special Division's order provides in pertinent part:
The Independent Counsel shall have jurisdiction and
authority to investigate to the maximum extent
authorized by the Independent Counsel Reauthorization
Act of 1994 whether Monica Lewinsky or others suborned
perjury, obstructed justice, intimidated witnesses, or
otherwise violated federal law other than a Class B or
C misdemeanor or infraction in dealing with witnesses,
potential witnesses, attorneys, or others concerning
the civil case Jones v. Clinton.
In re: Madison Guaranty Savings and Loan Association, Order of
the United States Court of Appeals for the District of Columbia
Circuit, Division for the Purpose of Appointing Independent
Counsels, January 16, 1998 (reprinted in H.R. Doc. 105-311,
Part I, at 6-7).
On September 9, 1998, Independent Counsel Starr notified
Speaker Gingrich and Minority Leader Gephardt that his office
``delivered to the Sergeant at Arms, the Honorable Wilson
Livingood, 36 sealed boxes containing two complete copies of a
Referral to the House of Representatives.'' Letter from
Independent Counsel Kenneth W. Starr to The Honorable Newt
Gingrich and the Honorable Richard A. Gephardt, September 9,
1998. The Referral included a narrative, appendices, and
supporting documents and evidence (including grand jury
transcripts) which supported the Office of Independent
Counsel's findings regarding the Lewinsky matter.
Independent Counsel Starr forwarded this information
pursuant to the Independent Counsel Reauthorization Act, 28
U.S.C. Sec. 591 et. seq., which provides:
Information relating to impeachment.--An independent
counsel shall advise the House of Representatives of
any substantial and credible information which such
independent counsel receives, in carrying out the
independent counsel's responsibilities under this
chapter, that may constitute grounds for an
impeachment. Nothing in this chapter or section 49 of
this title [concerning the assignment of judges to the
Special Division that appoints an independent counsel]
shall prevent the Congress or either House thereof from
obtaining information in the course of an impeachment
proceeding.
28 U.S.C. Sec. 595(c) (1994). After the Sergeant at Arms
received the materials, they were stored in a secure facility
in the Ford Building. The room, which is equipped with security
technology, is guarded by the U.S. Capitol police around the
clock.
Soon after the delivery of the materials from Independent
Counsel Starr, a bipartisan meeting of the House leadership was
held in the Speaker's office to decide the manner in which the
material would be handled. The meeting included Speaker
Gingrich, Majority Leader Armey, Minority Leader Gephardt,
Rules Committee Chairman Solomon, Rules Committee Democratic
Member Frost, Judiciary Committee Chairman Hyde, and Judiciary
Committee Ranking Minority Member Conyers. The meeting took
place at 5:00 p.m. in room H-230 in the Capitol. The main issue
resolved at that meeting was the manner in which the material
would be released to the public.
Chairman Hyde's original proposal did not include a
provision for the immediate release of documents to the public.
Instead, his plan included referring the communication from
Independent Counsel Starr to the Judiciary Committee so that
the Committee could review the material to determine whether
sufficient grounds existed to recommend to the House that an
impeachment inquiry be commenced. The material would have been
deemed received in executive session and access to the material
would have been restricted to the Members of the Committee on
the Judiciary. Chairman Hyde's draft resolution also contained
investigative authorities, such as staff deposition authority,
which would have enabled the Committee begin conducting an
investigation. Chairman Hyde's proposal, particularly the
provisions regarding the secrecy of the material and the
investigative authorities, were rejected.
Although many Democrats and pundits have criticized the
House of Representatives and the Committee for releasing the
pertinent parts of Independent Counsel's Starr's referral, few
know that a chief proponent of immediately releasing the
information was Minority Leader Gephardt. Rep. Gephardt favored
release because of his concern about leaks coming from the
Committee. He argued that it would be futile to hold material
back as there would be selective leaking, which would prejudice
the President's case. Therefore, he stated that there was a
general need to release all the material in the referral--
including the appendices and supporting evidence--to the public
as soon as possible. In fact, he insisted that all of the
information be made public. He expressed his sense that many
Members of Congress, who did not serve on the Committee, would
demand access to the supporting appendices, and it would be
unwise for the Committee to restrict the access to those
materials to Judiciary Committee Members only. Minority Leader
Gephardt also requested that the President be allowed to obtain
a copy of the narrative 24 hours before its public release, but
did not insist on his request which he abandoned quickly.
Rep. Conyers argued against the release of the materials as
did his chief investigative counsel. They were concerned about
the sensitivity of the material, particularly grand jury
material, and requested that the Committee be given an
opportunity to thoroughly review the material. In fact, Rep.
Conyers' position regarding public access to the material was
similar to Chairman Hyde's original position. At one point
during the meeting, Rep. Conyers and Minority Leader Gephardt
argued about the advisability of releasing the material to the
public for several minutes. Minority Leader Gephardt's position
eventually prevailed with one modification. Instead of
releasing all of the material immediately, the House authorized
the release of the narrative and then gave the Committee about
two and a half weeks to review and release the remaining
material by September 28, 1998. Speaker Gingrich, Minority
Leader Gephardt, and Rules Committee Chairman Solomon made it
clear toward the end of the meeting that the presumption was
that the Committee would release all of the relevant material
and should only redact personal, degrading, irrelevant, or
other sensitive information.
On September 10, 1998, the Committee on Rules received
testimony regarding the handling of the Referral. Hearing
before the Committee on Rules on H. Res. 525, 105th Cong., 2nd
Sess. (September 10, 1998). After the hearing, the Committee
considered H. Res. 525, which provided for a deliberative
review by the Committee on the Judiciary of a communication
from an independent counsel, and for the release thereof. Id.
The full House of Representatives approved H. Res. 525 on
September 11, 1998, by a vote of 363-63. 144 Cong. Rec. H7587-
H7608 (daily ed. September 11, 1998). As a result of the
passage of H. Res. 525, the narrative was ordered printed as a
House document. Referral from Independent Counsel Kenneth W.
Starr in Conformity with the Requirements of Title 28, United
States Code, Section 595(c), H.R. Doc. 105-310, 105th Cong.,
2nd Sess, 129-130 (1998).
In addition to ordering the public release of the
narrative, section two of H. Res. 525 directed that the
``balance of [the] material . . . shall be released from
[executive session status] on September 28, 1998, except as
otherwise determined by the committee. Material so released
shall immediately be submitted for printing as a document of
the House.'' Pursuant to this directive, the Committee staff
reviewed over 60,000 documents in less than three weeks. The
task was daunting and required a great deal of staff resources
to complete the job within the allotted time frame. After the
staff and Members reviewed the material, the Committee met in
executive session on September 17, 18, and 25 to consider the
staff's recommendations regarding the release of materials and
proposed redactions to those materials which were made to
protect privacy, remove vulgarities, and protect sensitive law
enforcement information, such as the names of FBI agents. See
Votes of the Committee in Executive Session Pursuant to H. Res.
525, Committee on the Judiciary, House of Representatives,
Committee Print, Ser. No. 7, 105th Cong., 2nd Sess. (1998). On
September 18 and pursuant to H. Res. 525, redacted appendices
to the Referral were ordered printed as a House document,
(Appendices to the Referral to the United States House of
Representatives Pursuant to Title 28, United States Code,
Section 595(c) Submitted by the Office of the Independent
Counsel, September 9, 1998, H.R. Doc. 105-311, 105th Cong., 2nd
Sess. (September 18, 1998)), and redacted supplemental
materials to the referral were released on September 28.
Supplemental Materials to the Referral to the United States
House of Representatives Pursuant to Title 28, United States
Code, Section 595(c) Submitted by the Office of the Independent
Counsel, September 9, 1998, H.R. Doc. 105-316, 105th Cong., 2nd
Sess. (September 28, 1998). Also, on September 28, the
President's responses to the Referral, which were received by
the Committee in executive session, were ordered printed as a
House document. Preliminary Memorandum of the President of the
United States Concerning Referral of the Office of the
Independent Counsel and Initial Response of the President of
the United States to Referral of the Office of the Independent
Counsel, H.R. Doc. 105-317, 105th Cong., 2nd Sess. (September
28, 1998).
Pursuant to H. Res. 525, the Committee was also obligated
to ``determine whether sufficient grounds exist to recommend to
the House that an impeachment inquiry be commenced.'' In order
to fulfill that important obligation, the Chairman and Ranking
Minority Member directed the majority and minority chief
investigative counsels to advise the Committee regarding the
information referred by the Independent Counsel. The Committee
received their orally delivered reports on October 5, 1998. The
Committee's Chief Investigative Counsel advised that there was
enough information to warrant a full inquiry, while the
minority's chief investigative counsel advised against
conducting a full inquiry. Following those presentations, the
Committee approved a resolution, H. Res. 581, which recommended
that the full House of Representatives authorize the Committee
to conduct an impeachment inquiry. Also, on that day the
Committee considered and approved by voice vote impeachment
inquiry procedures which were modeled after the procedures used
in 1974. Authorization of an Inquiry Into Whether Grounds Exist
for the Impeachment of William Jefferson Clinton, President of
the United States; Meeting of the House Comm. on the Judiciary
Held October 5, 1998; Presentation by Inquiry Staff
Consideration of Inquiry Resolution Adoption of Inquiry
Procedures, Committee Print, Ser. No. 8, 105th Cong., 2nd Sess.
(December 1998). On October 7, the Committee filed its report
on H. Res. 581 in the House. Investigatory Powers of the
Committee on the Judiciary with Respect to its Impeachment
Inquiry, H.R. Rept. 105-795, 105th Cong., 2nd Sess. (October 7,
1998). On October 8, by a vote of 258 to 176, the House passed
H. Res. 581, which ``authorized and directed [the Committee on
the Judiciary] to investigate fully and completely whether
sufficient grounds exist for the House of Representatives to
exercise its constitutional power to impeach William Jefferson
Clinton, President of the United States of America.'' 144 Cong.
Rec. H10119 (daily ed. October 8, 1998).
After the passage of H. Res. 581, Committee staff were
directed to investigate fully the allegations and evidence
relating to the Referral. Furthermore, the staff met with
representatives of the White House to discuss ways in which the
inquiry could proceed expeditiously. At an October 21, 1998
meeting, Charles F.C. Ruff, counsel to the President, and his
colleagues, were asked to provide exculpatory information to
the Committee. They did not supply any information. Also, the
White House was provided copies of the Committee's procedures
which, inter alia, allowed the President's counsel to call
witnesses. They did not exercise this right until the Committee
was preparing to vote on articles of impeachment.
In order to move the process forward, the Committee sent
the President 81 requests for admission which were to be
answered in writing under oath. Letter from The Honorable Henry
J. Hyde to The Honorable William Jefferson Clinton, November 5,
1998. Notwithstanding repeated requests, the White House did
not submit its answers until after three weeks passed. Letter
from Mr. David Kendall, Esq. to The Honorable Henry J. Hyde,
November 27, 1998. Many on the Committee felt that the
President's answers were evasive, misleading, and perjurious.
His answers became the basis for the fourth article of
impeachment.
On October 9, 1998, the Subcommittee on the Constitution
held a hearing in which 19 legal and constitutional experts
testified on the background and history of impeachment. The
Background and History of Impeachment: Hearing before the
Subcomm. On the Constitution, Comm. on the Judiciary, 105th
Cong., 2nd Sess. (November 9, 1998). The purpose of the hearing
was to hear from a diverse group of scholars regarding the
constitutional standard of impeachment--``high crimes and
misdemeanors.'' The Committee also published two lengthy
documents to assist Members with their research into
impeachment. See Constitutional Grounds for Presidential
Impeachment: Modern Precedents, House Comm. on the Judiciary,
Comm. Print, Ser. No. 9, 105th Cong., 2nd Sess. (November
1998); Impeachment: Selected Materials, House Comm. on the
Judiciary, Comm. Print, Ser. No. 10, 105th Cong., 2nd Sess.
(November 1998).
On October 19, 1998, the Committee heard testimony from
Independent Counsel Starr. Hearings on Impeachment Inquiry
Pursuant to H. Res. 581: Hearing before the Comm. On the
Judiciary, 105th Cong., 2nd Sess. (November 1, 1998). Judge
Starr was invited after many Democrats requested that he be
called before the Committee. David Kendall, the President's
private attorney, questioned Judge Starr for an hour. In all of
his questioning, Mr. Kendall never once asked any questions
relating to the evidence collected during the grand jury's
investigation. On December 1, the Committee adduced testimony
from various witnesses regarding the law of perjury. The
Consequences of Perjury and Related Crimes: Hearing before the
Comm. on the Judiciary, 105th Cong., 2nd Sess. (December 1,
1998). Two of the witnesses were women who were prosecuted for
perjury arising out of civil cases which had many similarities
to the Jones v. Clinton case. After several months of
requesting the White House to submit witnesses, the White House
notified the Committee on Friday, December 4, that they wished
to call witnesses. This was after the Chairman had already
announced that the Committee would consider articles of
impeachment the following week. The Committee accommodated the
White House's request, and held two days of hearings, including
receiving testimony from White House Counsel Charles F.C. Ruff.
Hearings on Impeachment Inquiry Pursuant to H. Res. 581:
Hearing before the Comm. On the Judiciary, 105th Cong., 2nd
Sess. (December 9, 1998). The Committee ordered printed Mr.
Ruff's submission to the Committee. Submission by Counsel for
President Clinton to the Committee on the Judiciary of the
United States House of Representatives, House Comm. on the
Judiciary, Comm. Print, Ser. No. 16, 105th Cong., 2nd Sess.
(December 1998).
Finally, on December 10, 11, and 12, 1998, the Committee
considered and passed four articles of impeachment. The
procedure used to consider the articles of impeachment were
similar to and predicated upon the procedures used in 1974.
Prior to the consideration of the articles, Rep. Sensenbrenner
moved the resolution's favorable recommendation to the House.
After the clerk of the Committee reported the resolution, the
Committee approved Chairman Hyde's unanimous consent request
that provided in pertinent part that ``. . . the proposed
articles shall be considered as read and open for amendment.
Each proposed article and any additional article, if any, shall
be separately voted upon, as amended, for the recommendation to
the House, if any article has been agreed to, the original
motion shall be considered as adopted and the Chairman shall
report to the House said resolution of impeachment, together
with such articles as have been agreed to.'' See House
Committee on the Judiciary Business Meeting, at 3-6, December
10, 1998 (unofficial transcript). Four articles of impeachment
were eventually adopted and ordered reported to the House.
A. VOTES OF THE COMMITTEE
Pursuant to clause 2(l)(2)(B) of House rule XI, the results
of each rollcall vote on an amendment or motion to report,
together with the names of those voting for and against, are
printed herein. The following roll call votes occurred during
Committee deliberations on a resolution exhibiting articles of
impeachment. Also included is a rollcall vote on a joint
resolution sponsored by Rep. Boucher censuring President
Clinton. Chairman Hyde allowed a vote on this joint resolution
even though it was not germane to the articles of impeachment.
1. Rollcall No. 1--Amendment to Article I Offered by Rep. Rogan
An amendment was offered by Mr. Rogan to Article I of the
Hyde resolution which inserted the words, ``one or more of the
following''. This language was inserted so that the statements
that comprise the perjurious, false and misleading statements
in the August 17, 1998 grand jury testimony of President
William Jefferson Clinton did not have to include all the
circumstances itemized in the paragraphs of Article I, but
could relate to one or more of the following circumstances:
statements related to the nature and details of his
relationship with a subordinate government employee; prior
perjurious, false and misleading testimony given in a federal
civil rights action brought against him; prior false and
misleading statements he allowed his attorney to make to a
federal judge in that civil rights action; and his corrupt
efforts to influence the testimony of witnesses and to impede
the discovery of evidence. The amendment was adopted by a vote
of 21 ayes to 16 nays.
ROLLCALL NO. 1
Subject: Amendment of Mr. Rogan to the Resolution
Impeaching William Jefferson Clinton, President of the United
States, for high crimes and misdemeanors. Article I, page 2,
line 17, insert after ``concerning'' the following: ``one or
more of the following''. Passed by a vote of 21 ayes to 16
noes.
------------------------------------------------------------------------
Ayes Nays Present
------------------------------------------------------------------------
Mr. Sensenbrenner........................... X ....... ........
Mr. McCollum................................ X ....... ........
Mr. Gekas................................... X ....... ........
Mr. Coble................................... X ....... ........
Mr. Smith................................... X ....... ........
Mr. Gallegly................................ X ....... ........
Mr. Canady.................................. X ....... ........
Mr. Inglis.................................. X ....... ........
Mr. Goodlatte............................... X ....... ........
Mr. Buyer................................... X ....... ........
Mr. Bryant.................................. X ....... ........
Mr. Chabot.................................. X ....... ........
Mr. Barr.................................... X ....... ........
Mr. Jenkins................................. X ....... ........
Mr. Hutchinson.............................. X ....... ........
Mr. Pease................................... X ....... ........
Mr. Cannon.................................. X ....... ........
Mr. Rogan................................... X ....... ........
Mr. Graham.................................. X ....... ........
Ms. Bono.................................... X ....... ........
Mr. Conyers................................. ....... X ........
Mr. Frank................................... ....... X ........
Mr. Schumer................................. ....... X ........
Mr. Berman.................................. ....... X ........
Mr. Boucher................................. ....... X ........
Mr. Nadler.................................. ....... X ........
Mr. Scott................................... ....... X ........
Mr. Watt.................................... ....... X ........
Mr. Lofgren................................. ....... X ........
Ms. Jackson-Lee............................. ....... X ........
Ms. Waters.................................. ....... X ........
Mr. Meehan.................................. ....... X ........
Mr. Delahunt................................ ....... X ........
Mr. Wexler.................................. ....... X ........
Mr. Rothman................................. ....... X ........
Mr. Barrett (WI)............................ ....... X ........
Mr. Hyde, Chairman.......................... X ....... ........
---------------------------
Total................................. 21 16 ........
------------------------------------------------------------------------
2. Rollcall No. 2--Article I
Article I states that President William Jefferson Clinton
provided perjurious, false and misleading testimony to the
federal grand jury regarding one or more of the following: (1)
the nature of his relationship with Monica Lewinsky; (2) prior
perjurious, false, and misleading testimony he gave in the
Paula Jones civil rights case; (3) prior false and misleading
statements he allowed his attorney, Bob Bennett, to make in the
Paula Jones case; and (4) his efforts to influence the
testimony of witnesses and to impede the discovery of evidence
in the Paula Jones case. Article I was agreed to, as amended,
by a vote of 21 ayes to 16 noes.
ROLLCALL NO. 2
Subject: Article I of the Resolution Impeaching William
Jefferson Clinton, President of the United States, for high
crimes and misdemeanors. Article I passed, as amended, by a
vote of 21 ayes to 16 noes.
------------------------------------------------------------------------
Ayes Nays Present
------------------------------------------------------------------------
Mr. Sensenbrenner........................ X ........ .........
Mr. McCollum............................. X ........ .........
Mr. Gekas................................ X ........ .........
Mr. Coble................................ X ........ .........
Mr. Smith................................ X ........ .........
Mr. Gallegly............................. X ........ .........
Mr. Canady............................... X ........ .........
Mr. Inglis............................... X ........ .........
Mr. Goodlatte............................ X ........ .........
Mr. Buyer................................ X ........ .........
Mr. Bryant............................... X ........ .........
Mr. Chabot............................... X ........ .........
Mr. Barr................................. X ........ .........
Mr. Jenkins.............................. X ........ .........
Mr. Hutchinson........................... X ........ .........
Mr. Pease................................ X ........ .........
Mr. Cannon............................... X ........ .........
Mr. Rogan................................ X ........ .........
Mr. Graham............................... X ........ .........
Ms. Bono................................. X ........ .........
Mr. Conyers.............................. ........ X .........
Mr. Frank................................ ........ X .........
Mr. Schumer.............................. ........ X .........
Mr. Berman............................... ........ X .........
Mr. Boucher.............................. ........ X .........
Mr. Nadler............................... ........ X .........
Mr. Scott................................ ........ X .........
Mr. Watt................................. ........ X .........
Mr. Lofgren.............................. ........ X .........
Ms. Jackson-Lee.......................... ........ X .........
Ms. Waters............................... ........ X .........
Mr. Meehan............................... ........ X .........
Mr. Delahunt............................. ........ X .........
Mr. Wexler............................... ........ X .........
Mr. Rothman.............................. ........ X .........
Mr. Barrett (WI)......................... ........ X .........
Mr. Hyde, Chairman....................... X ........ .........
------------------------------
Total.............................. 21 16 .........
------------------------------------------------------------------------
3. Rollcall No. 3--Article II
Article II states that President William Jefferson Clinton
provided perjurious, false and misleading testimony as part of
the Paula Jones civil rights action brought against him: (1) in
his sworn answers to written questions; and (2) in his January
17, 1998 deposition. Article II was agreed to by a vote of 20
ayes to 17 noes.
ROLLCALL NO. 3
Subject: Article II of the Resolution Impeaching William
Jefferson Clinton, President of the United States, for high
crimes and misdemeanors. Article II passed by a vote of 20 ayes
to 17 noes.
------------------------------------------------------------------------
Ayes Nays Present
------------------------------------------------------------------------
Mr. Sensenbrenner........................ X ........ .........
Mr. McCollum............................. X ........ .........
Mr. Gekas................................ X ........ .........
Mr. Coble................................ X ........ .........
Mr. Smith................................ X ........ .........
Mr. Gallegly............................. X ........ .........
Mr. Canady............................... X ........ .........
Mr. Inglis............................... X ........ .........
Mr. Goodlatte............................ X ........ .........
Mr. Buyer................................ X ........ .........
Mr. Bryant............................... X ........ .........
Mr. Chabot............................... X ........ .........
Mr. Barr................................. X ........ .........
Mr. Jenkins.............................. X ........ .........
Mr. Hutchinson........................... X ........ .........
Mr. Pease................................ X ........ .........
Mr. Cannon............................... X ........ .........
Mr. Rogan................................ X ........ .........
Mr. Graham............................... ........ X .........
Ms. Bono................................. X ........ .........
Mr. Conyers.............................. ........ X .........
Mr. Frank................................ ........ X .........
Mr. Schumer.............................. ........ X .........
Mr. Berman............................... ........ X .........
Mr. Boucher.............................. ........ X .........
Mr. Nadler............................... ........ X .........
Mr. Scott................................ ........ X .........
Mr. Watt................................. ........ X .........
Mr. Lofgren.............................. ........ X .........
Ms. Jackson-Lee.......................... ........ X .........
Ms. Waters............................... ........ X .........
Mr. Meehan............................... ........ X .........
Mr. Delahunt............................. ........ X .........
Mr. Wexler............................... ........ X .........
Mr. Rothman.............................. ........ X .........
Mr. Barrett (WI)......................... ........ X .........
Mr. Hyde, Chairman....................... X ........ .........
------------------------------
Total.............................. 20 ........ 17
------------------------------------------------------------------------
4. Rollcall No. 4--Article III
Article III provides that President William Jefferson
Clinton obstructed justice in an effort to delay, impede, cover
up, and conceal the existence of evidence related to the Paula
Jones civil rights case in the following instances: (1) On or
about December 17, 1998, President Clinton encouraged Monica
Lewinsky to submit a false written statement (affidavit) to the
court; (2) On or about December 17, 1998, President Clinton
encouraged Monica Lewinsky to give false testimony to the
court; (3) On or about December 28, 1998, President Clinton
helped in a plan to hide the gifts Monica Lewinsky gave him;
(4) Beginning on or about December 7, 1998, and continuing
through and including January 14, 1998, President Clinton
intensified efforts and succeeded in getting Monica Lewinsky a
job to prevent her truthful testimony; (5) On or about January
17, 1998, in his deposition in the Paula Jones civil rights
case, President Clinton allowed his attorney, Bob Bennett, to
make false and misleading statements about Monica Lewinsky's
affidavit; (6) On or about January 18, and January 20-21, 1998,
President Clinton made false and misleading statements to Betty
Currie, a potential witness, to influence her testimony in the
Paula Jones civil case; (7) On or about January 21, 23, and 26,
1998, President Clinton made false and misleading statements to
Erskine Bowles, Bruce Lindsey and Sidney Blumenthal, potential
witnesses in the criminal case, to influence their testimony.
Article III was agreed to by a vote of 21 ayes to 16 noes.
ROLLCALL NO. 4
Subject: Article III of the Resolution Impeaching William
Jefferson Clinton, President of the United States, for high
crimes and misdemeanors. Article III passed by a vote of 21
ayes to 16 noes.
------------------------------------------------------------------------
Ayes Nays Present
------------------------------------------------------------------------
Mr. Sensenbrenner........................ X ........ .........
Mr. McCollum............................. X ........ .........
Mr. Gekas................................ X ........ .........
Mr. Coble................................ X ........ .........
Mr. Smith................................ X ........ .........
Mr. Gallegly............................. X ........ .........
Mr. Canady............................... X ........ .........
Mr. Inglis............................... X ........ .........
Mr. Goodlatte............................ X ........ .........
Mr. Buyer................................ X ........ .........
Mr. Bryant............................... X ........ .........
Mr. Chabot............................... X ........ .........
Mr. Barr................................. X ........ .........
Mr. Jenkins.............................. X ........ .........
Mr. Hutchinson........................... X ........ .........
Mr. Pease................................ X ........ .........
Mr. Cannon............................... X ........ .........
Mr. Rogan................................ X ........ .........
Mr. Graham............................... X ........ .........
Ms. Bono................................. X ........ .........
Mr. Conyers.............................. ........ X .........
Mr. Frank................................ ........ X .........
Mr. Schumer.............................. ........ X .........
Mr. Berman............................... ........ X .........
Mr. Boucher.............................. ........ X .........
Mr. Nadler............................... ........ X .........
Mr. Scott................................ ........ X .........
Mr. Watt................................. ........ X .........
Mr. Lofgren.............................. ........ X .........
Ms. Jackson-Lee.......................... ........ X .........
Ms. Waters............................... ........ X .........
Mr. Meehan............................... ........ X .........
Mr. Delahunt............................. ........ X .........
Mr. Wexler............................... ........ X .........
Mr. Rothman.............................. ........ X .........
Mr. Barrett (WI)......................... ........ X .........
Mr. Hyde, Chairman....................... X ........ .........
------------------------------
Total................................ 21 16
------------------------------------------------------------------------
5. Rollcall No. 5--Amendment to Article IV Offered by Rep. Gekas
An amendment was offered by Mr. Gekas to Article IV of the
Hyde resolution which struck the word ``repeatedly'' as a
description of conduct that resulted in the misuse and abuse of
the President's office to correspond with the deletion of
Paragraphs 1, 2, and 3. Article IV had set forth several
grounds to impeach President William Jefferson Clinton for
misuse and abuse of the office of the President. Paragraph 1 of
Article IV, which was deleted by the amendment, stated that
President William Jefferson Clinton willfully made false and
misleading public statements for the purpose of deceiving the
people of the United States. Paragraph 2 of Article IV, which
was deleted by the amendment, stated that President William
Jefferson Clinton willfully made false and misleading
statements to members of his cabinet and White House aides, so
that these statements would be repeated publicly using public
resources for the purpose of deceiving the people of the United
States. Paragraph 3 of Article IV, which was deleted by the
amendment, stated that as President, using the Office of the
White House counsel, William Jefferson Clinton did frivolously
and corruptly assert executive privilege for the purpose of
delaying and obstructing a federal criminal investigation and
the proceeding of the grand jury. The remaining Paragraph 4 of
Article IV was rewritten by the amendment and provides that
President William Jefferson Clinton made false and misleading
sworn statements, refused and failed to respond to certain
written requests for admissions asked of him by the House of
Representatives of the Congress of the United States (answers
to the 81 questions), showing contempt for the impeachment
inquiry process. The amendment was adopted by a vote of 29
ayes, 5 noes and 3 present.
ROLLCALL NO. 5
Subject: Amendment by Mr. Gekas to the Resolution
Impeaching William Jefferson Clinton, President of the United
States, for high crimes and misdemeanors. Article IV. Strikes
paragraphs regarding ``misuse and abuse of power'' with respect
to false and misleading sworn statements for the purpose of
deceiving the people of the United States, members of his
cabinet, and in asserting the executive privilege and inserts a
section regarding ``perjurious, false and misleading sworn
statements'' made to the Congress. Passed by a vote of 29 ayes
to 5 noes and 3 present.
------------------------------------------------------------------------
Ayes Nays Present
------------------------------------------------------------------------
Mr. Sensenbrenner........................ X ........ .........
Mr. McCollum............................. X ........ .........
Mr. Gekas................................ X ........ .........
Mr. Coble................................ X ........ .........
Mr. Smith................................ X ........ .........
Mr. Gallegly............................. X ........ .........
Mr. Canady............................... X ........ .........
Mr. Inglis............................... X ........ .........
Mr. Goodlatte............................ X ........ .........
Mr. Buyer................................ X ........ .........
Mr. Bryant............................... X ........ .........
Mr. Chabot............................... X ........ .........
Mr. Barr................................. X ........ .........
Mr. Jenkins.............................. X ........ .........
Mr. Hutchinson........................... X ........ .........
Mr. Pease................................ X ........ .........
Mr. Cannon............................... ........ X .........
Mr. Rogan................................ X ........ .........
Mr. Graham............................... X ........ .........
Ms Bono.................................. X ........ .........
Ms. Conyers.............................. X ........ .........
Mr. Frank................................ ........ ........ X
Mr. Schumer.............................. X ........ .........
Mr. Berman............................... X ........ .........
Mr. Boucher.............................. X ........ .........
Mr. Nadler............................... X ........ .........
Mr. Scott................................ X ........ .........
Mr. Watt................................. X ........ .........
Ms. Lofgren.............................. ........ ........ X
Ms. Jackson-Lee.......................... ........ X .........
Ms. Waters............................... ........ X .........
Mr. Meehan............................... ........ ........ X
Mr. Delahunt............................. X ........ .........
Mr. Wexler............................... ........ X .........
Mr. Rothman.............................. X ........ .........
Mr. Barrett (WI)......................... ........ X .........
Mr. Hyde, Chairman....................... X ........ .........
------------------------------
Total.............................. 29 5 3
------------------------------------------------------------------------
6. Rollcall No. 6--Article IV
Article IV provides that President William Jefferson
Clinton willfully made perjurious, false and misleading sworn
statements in response to certain written requests for
admissions asked of him by the House of Representatives of the
Congress of the United States, (answers to the 81 questions)
showing contempt for the impeachment inquiry process. Article
IV was adopted by a vote of 21 ayes to 16 noes.
ROLLCALL NO. 6
Subject: Article IV of the Resolution Impeaching William
Jefferson Clinton, President of the United States, for high
crimes and misdemeanors. Article IV passed, as amended, by a
vote 21 ayes to 16 noes.
------------------------------------------------------------------------
Ayes Nays Present
------------------------------------------------------------------------
Mr. Ssnsenbrenner........................ X ........ .........
Mr. McCollum............................. X ........ .........
Mr. Gekas................................ X ........ .........
Mr. Coble................................ X ........ .........
Mr. Smith................................ X ........ .........
Mr. Gallegly............................. X ........ .........
Mr. Canady............................... X ........ .........
Mr. Inglis............................... X ........ .........
Mr. Goodlatte............................ X ........ .........
Mr. Buyer................................ X ........ .........
Mr. Bryant............................... X ........ .........
Mr. Chabot............................... X ........ .........
Mr. Barr................................. X ........ .........
Mr. Jenkins.............................. X ........ .........
Mr. Hutchinson........................... X ........ .........
Mr. Pease................................ X ........ .........
Mr. Cannon............................... X ........ .........
Mr. Rogan................................ X ........ .........
Mr. Graham............................... X ........ .........
Mrs. Bono................................ X ........ .........
Mr. Conyers.............................. ........ X .........
Mr. Frank................................ ........ X .........
Mr. Schumer.............................. ........ X .........
Mr. Berman............................... ........ X .........
Mr. Boucher.............................. ........ X .........
Mr. Nadler............................... ........ X .........
Mr. Scott................................ ........ X .........
Mr. Watt................................. ........ X .........
Ms. Lofgren.............................. ........ X .........
Ms. Jackson-Lee.......................... ........ X .........
Ms. Waters............................... ........ X .........
Mr. Meehan............................... ........ X .........
Mr. Delahunt............................. ........ X .........
Mr. Wexler............................... ........ X .........
Mr. Rothman.............................. ........ X .........
Mr. Barrett (WI)......................... ........ X .........
Mr. Hyde, Chairman....................... X ........ .........
------------------------------
Total.............................. 21 16 .........
------------------------------------------------------------------------
7. Rollcall No. 7--Censure Resolution
Although not germane to the consideration of a privileged
impeachment resolution, Chairman Hyde and the Committee agreed
to consider a joint resolution sponsored by Mr. Boucher that
would express the sense of Congress with respect to the censure
of President William Jefferson Clinton. The joint resolution of
censure offered by Mr. Boucher was defeated by a vote 14 ayes,
22 nays and 1 present. The text of the joint resolution
follows:
Joint Resolution
Expressing the sense of Congress with respect to the
censure of William Jefferson Clinton. Resolved by the Senate
and House of Representatives of the United States of America in
Congress assembled, That it is the sense of Congress that--
(1) on January 20, 1993, William Jefferson Clinton took the
oath prescribed by the Constitution of the United States
faithfully to execute the office of President; implicit in that
oath is the obligation that the President set an example of
high moral standards and conduct himself in a manner that
fosters respect for the truth; and William Jefferson Clinton,
has egregiously failed in this obligation, and through his
actions violated the trust of the American people, lessened
their esteem for the office of President, and dishonored the
office which they have entrusted to him;
(2)(A) William Jefferson Clinton made false statements
concerning his reprehensible conduct with a subordinate;
(B) William Jefferson Clinton wrongly took steps to delay
discovery of the truth; and
(C) in as much as no person is above the law, William
Jefferson Clinton remains subject to criminal and civil
penalties; and
(3) William Jefferson Clinton, President of the United
States, by his conduct has brought upon himself, and fully
deserves, the censure and condemnation of the American people
and the Congress; and by his signature on this Joint
Resolution, acknowledges this censure and condemnation.
ROLLCALL NO. 7
Subject: Joint Resolution Expressing the sense of Congress
with respect to the censure of William Jefferson Clinton.
Defeated by a vote of 14 ayes to 22 noes and 1 present.
------------------------------------------------------------------------
Ayes Nays Present
------------------------------------------------------------------------
Mr. Sensenbrenner........................ ........ X .........
Mr. McCollum............................. ........ X .........
Mr. Gekas................................ ........ X .........
Mr. Coble................................ ........ X .........
Mr. Smith................................ ........ X .........
Mr. Gallegly............................. ........ X .........
Mr. Canady............................... ........ X .........
Mr. Inglis............................... ........ X .........
Mr. Goodlatte............................ ........ X .........
Mr. Buyer................................ ........ X .........
Mr. Bryant............................... ........ X .........
Mr. Chabot............................... ........ X .........
Mr. Barr................................. ........ X .........
Mr. Jenkins.............................. ........ X .........
Mr. Hutchinson........................... ........ X .........
Mr. Pease................................ ........ X .........
Mr. Cannon............................... ........ X .........
Mr. Rogan................................ ........ X .........
Mr. Graham............................... ........ X .........
Mrs. Bono................................ ........ X .........
Mr. Conyers.............................. X ........ .........
Mr. Frank................................ X ........ .........
Mr. Schumer.............................. X ........ .........
Mr. Berman............................... X ........ .........
Mr. Boucher.............................. X ........ .........
Mr. Nadler............................... X ........ .........
Mr. Scott................................ ........ X .........
Mr. Watt................................. X ........ .........
Ms. Lofgren.............................. X ........ .........
Ms. Jackson-Lee.......................... X ........ .........
Ms. Waters............................... ........ ........ X
Mr. Meehan............................... X ........ .........
Mr. Delahunt............................. X ........ .........
Mr. Wexler............................... X ........ .........
Mr. Rothman.............................. X ........ .........
Mr. Barrett (WI)......................... X ........ .........
Mr. Hyde, Chairman....................... ........ X .........
------------------------------
Total.............................. 14 22 1
------------------------------------------------------------------------
B. COMMITTEE OVERSIGHT FINDINGS
In compliance with clause 2(l)(3)(A) of rule XI of the
Rules of the House of Representatives, the Committee reports
that the findings and recommendations of the Committee, based
on oversight activities under clause 2(b)(l) of rule X of the
Rules of the House of Representatives, are incorporated in the
descriptive portions of this report.
C. COMMITTEE ON GOVERNMENT REFORM AND OVERSIGHT FINDINGS
Clause 2(l)(3)(D) of rule XI requires each Committee report
to contain a summary of the oversight findings and
recommendations made by the Government Reform and Oversight
Committee pursuant to clause 4(c)(2) of rule X, whenever such
findings have been timely submitted. The Committee on the
Judiciary has received no such findings or recommendations from
the Committee on Government Reform and Oversight.
D. NEW BUDGET AUTHORITY AND TAX EXPENDITURES
Clause 2(l)(3)(B) of House rule XI is inapplicable because
this resolution does not provide new budgetary authority or
increased tax expenditures.
E. COMMITTEE COST ESTIMATE
In compliance with clause 7(a) of rule XIII of the Rules of
the House of Representatives, the Committee believes that the
resolution will have no budget effect.
F. CONSTITUTIONAL AUTHORITY
Pursuant to clause 2(l)(4) of the Rules of the House of
Representatives, the Committee finds the authority for this
resolution in Article I, section 2, clause 5 of the
Constitution.
VI. ARGUMENTS ABOUT CENSURE
The Constitution contains a single procedure for Congress
to address the fitness for office of the President of the
United States--impeachment by the House, and subsequent trial
by the Senate. Article II, section 4 of the Constitution also
specifies the necessary consequence of conviction in an
impeachment case: ``The President, the Vice-President and all
civil officers shall be removed from Office on Impeachment for,
and Conviction of, Treason, Bribery, or other high Crimes and
Misdemeanors.''
Article I, section 3 states that ``Judgment in Cases of
Impeachment will not extend further than removal from Office,
and disqualification to hold and enjoy any Office of honor,
Trust or Profit under the United States.'' This provision,
however, does not authorize Congress to impose legislative
punishments short of removal. Read together, the impeachment
clauses require removal upon conviction, but allow the Senate
at its discretion to impose a single additional penalty--
disqualification from future office.
The Framers' decision to confine legislative sanctioning of
executive officials to removal upon impeachment was carefully
considered. By forcing the House and Senate to act as a
tribunal and trial jury, rather than merely as a legislative
body, they infused the process with notions of due process.
Under the Constitution, the House impeaches by a majority vote.
However, the requirement of removal upon conviction after a
two-thirds vote in the Senate accentuates the magnitude of the
procedure, encouraging serious deliberation among members of
Congress. Most importantly, by refusing to include any
consequences less serious than removal as outcomes of the
impeachment process, the Framers made impeachment into such an
awesome power that Congress could not use it to harass
executive officials or otherwise interfere with operations of
coordinate branches.
But for the President or any other civil officer, censure
as a shaming punishment by the legislature is precluded by the
Constitution, since the impeachment provisions permit Congress
only to remove an officer of another branch of government and
disqualify him from office. Not only would such a punishment
undermine the separation of powers by punishing the President
or other civil officers of the government in a manner other
than expressly provided for in the Constitution, but it would
violate the Constitution's prohibition on Bills of Attainder.
U.S. Const. art. I, sec. 9, cl. 3. (``No Bill of Attainder or
ex post facto Law shall be passed'').
A. Prohibited Bill of Attainder
A Bill of Attainder was originally a mechanism by which the
British Parliament could punish specific individuals for
activities against the interests of the Crown. Artway v.
Attorney General of New Jersey, 876 F. Supp. 666, 683 (1995),
aff'd in part, vacated in part, 81 F.3d 1235 (3rd Cir. 1996).
It was a feature of the British Common law abominable to the
Framers of our Constitution. Id. A Bill of Attainder is a law
that is intended to punish a specific individual (or
identifiable group of individuals) rather than a regulatory or
prophylactic law intended to protect the public. United States
v. Brown, 381 U.S. 437 (1965). The Bill of Attainder Clause was
intended, as the Supreme Court declared in Brown, id. at 442,
to serve as ``a general safeguard against legislative exercise
of the judicial function, or more simply trial by
legislature.'' In 1977, the Supreme Court described a Bill of
Attainder as ``a law that legislatively determines guilt and
inflicts punishment upon an identified individual without the
provisions of the protections of a judicial trial.'' Nixon v.
Administrator of General Services, 433 U.S. 425, 468 (1977).
The Court also said that ``a major concern that prompted the
bill of attainder prohibition [was] the fear that the
legislature, in seeking to pander to the inflamed popular
constituency, will find it expedient openly to assume the
mantle of judge.'' Id. at 480 (emphasis added); cf. E.E.O.C. v.
Sears, Roebuck and Company, 504 F. Supp. 241 (1980)(finding no
bill of attainder violation because ``there has been no
determination of . . . guilt'' nor imposition of punitive
measures).
Importantly, the proposed censure resolution is a joint
resolution, requiring passage by both houses and signature by
the President. While a simple or concurrent resolution is more
like a ``collective shout'' from the House or Senate Floor than
a bill, a joint resolution is very clearly a ``bill,'' since it
is a measure requiring the signature of the President. A joint
resolution of censure--a law formally and publicly expressing
condemnation by the legislature directed at a specific
individual--confronts squarely the prohibition on Bills of
Attainder.
Defenders of presidential ``censure'' argue that it does
not really punish and therefore cannot be a Bill of Attainder.
In determining whether a law is punitive within the context of
the prohibition of Bills of Attainder, courts look to what are
understood as the motivational, functional, and historical
tests: (1) whether the legislature intended the law to be
punitive; (2) whether the law reasonably can be said to further
non-punitive legislative purposes; and (3) whether the
punishment was traditionally judged to be prohibited by the
Bill of Attainder clause. See In re McMullen, 989 F.2d 603, 607
(2d Cir.), cert. denied, 114 S. Ct. 301 (1993).
The motivational test is clearly implicated here. As the
Congressional Research Service has noted, any argument that
censure provisions were not intended to be punitive would
``face the task of overcoming express statements by individual
Members concerning the appropriate `punishment' in this
particular case.'' Censure of the President by Congress, Jack
Maskell, Legislative Attorney, American Law Division, CRS
Report for Congress, September 29, 1998, at 9. Indeed, the
record is replete with such references. As Representative Pease
stated during consideration of the joint resolution of censure:
It seems to me, after all this discussion of what
exactly is a resolution of censure regarding the
President, there is still no agreement. It is either an
action to punish the President or it is an action that
doesn't punish the President. If it is an action to
punish the President, it is a bill of attainder and
unconstitutional. If it is a resolution that does not
punish the President, it is meaningless. For that
reason, though I have the greatest respect for those
who have offered it, I cannot support the resolution.
Markup Session, Articles of Impeachment of William Jefferson
Clinton, Statement of Representative Edward A. Pease, December
12, 1998, at 286 (Statement of Rep. Pease).
In Nixon v. Administrator of General Services, the Supreme
Court examined claims by President Richard Nixon that the
Presidential Recordings and Materials Preservation Act
constituted an unconstitutional Bill of Attainder. Nixon v.
Administrator of General Services, 433 U.S. at 468.
Importantly, the Court upheld the District Court's finding that
there was ``no evidence presented . . . [or] to be found in the
legislative record, to indicate that Congress' design was to
impose a penalty upon Mr. Nixon . . . as punishment for alleged
past wrongdoings.'' Id. at 478. The Court noted that ``the
objectives of preserving the availability of judicial
evidence'' was properly within Congress' legislative
competence, and agreed with the District Court's conclusion
that ``the Act before us is regulatory and not punitive in
character.'' Id.
In a concurring opinion in Nixon, Justice Stevens was
concerned that ``[t]he statute implicitly condemns him as an
unreliable custodian of his papers'' and declared that
``[l]egislation which subjects a named individual to this
humiliating treatment must raise serious questions under the
Bill of Attainder Clause.'' Id. at 484 (J. Stevens, concurring
opinion)(emphasis added). A resolution explicitly condemning a
person and subjecting him to humiliating treatment confronts
directly the Article I prohibition on Bills of Attainder.
Moreover, Professor John C. Harrison of the University of
Virginia Law School, who testified at the Committee hearing on
``The Background and History of Impeachment,'' has written
that:
A resolution of censure, even if purely expressive,
still would have a punitive purpose. Expressed moral
condemnation is a form of retribution, and acceptance
of it is a form of contrition just as acceptance of
more concrete punishment is a form of contrition. That
punitive purpose would bring a censure resolution
within the ban on bills of attainder if one were to
conclude that the injury inflicted on the President,
although purely expressive, were punishment within the
meaning of the Bill of Attainder Clause.
Letter of John C. Harrison, Professor of Law, University of
Virginia Law School, to Representative William Delahunt
(December 3, 1998).
B. Censure of President Andrew Jackson
The House of Representatives has never before censured a
President. Moreover, no President has ever willingly accepted a
censure of the Executive by the Legislative Branch. In 1834,
the Senate voted to censure President Andrew Jackson on the
ground that, in withdrawing federal funds from the Bank of the
United States, he had ``assumed upon himself authority and
power not conferred by the Constitution and laws, but in
derogation of both.'' Telling are the words of protest from
President Jackson, which the Senate refused to enter on its
Journal:
By an expression of the constitution, before the
President of the United States can enter on the
execution of his office, he is required to take an oath
or affirmation in the following words: ``I do solemnly
swear (or affirm) that I will faithfully execute the
office of President of the United States, and will, to
the best of my ability, preserve, protect, and defend
the constitution of the United States.''
The duty of defending, so far as in him lies, the
integrity of the constitution, would indeed have
resulted from the very nature of his office; but by
thus expressing it in the official oath or affirmation,
which, in this respect, differs from that of every
other functionary, the founders of our republic have
attested their sense of its importance, and have given
to it a peculiar solemnity and force. Bound to the
performance of this duty by the oath I have taken, by
the strongest obligations of gratitude to the American
people, and by the ties which unite my every earthly
interest with the welfare and glory of my country, and
perfectly convinced that the discussion and passage of
the above-mentioned resolution were not only
unauthorized by the Constitution, but in many respects
repugnant to its provisions and subversive of the
rights secured by it to other co-ordinate departments,
I deem it an imperative duty to maintain the supremacy
of that sacred instrument, and the immunities of the
department intrusted to my care, by all means
consistent with my own lawful powers, with the rights
of others, and with the genius of our civil
institutions. To this end, I have caused this, my
solemn protest against the aforesaid proceedings, to be
placed on the files of the Executive department, and be
transmitted to the Senate.
Gales & Seaton's Register, President's Protest, April 17, 1834,
Protest of President Andrew Jackson.
President Jackson wrote that the very idea of a censure is
a ``subversion of that distribution of powers of government
which [the Constitution] has ordained and established [and]
destructive of the checks and safeguards by which those powers
were intended on the one hand to be controlled and the other to
be protected.'' Id. It was for this reason that President
Jackson argued that censure was ``wholly unauthorized by the
Constitution and in derogation of its entire spirit.'' Id. One
of the constitutional scholars appearing before the Committee
during the course of its impeachment hearings, Gary McDowell,
stated this point eloquently:
Impeachment is the only power granted by the
Constitution to the Congress to deal with errant
executives. It is the only means whereby the
necessarily high walls of separation between the two
branches may be legitimately scaled. Had the Founders
intended some other means of punishment to be available
to your branch they would have said so, as Chief
Justice John Marshall once said, ``in plain and
intelligible language.'' That they did not do so should
be your only guide in this grave and sensitive matter.
The temptation to do anything possible to avoid
exercising the awful constitutional power of
impeachment is obviously and understandably great. But
such a temptation to take the easy way out by assuming
a power not granted should be shunned. And should
President Clinton, as a result of bad advice or
political pressure, agree to such an unconstitutional
punishment as a censure, that would be a breach of his
constitutional obligations as great as anything else of
which he has been accused. The great office he is
privileged to hold deserves his protection against any
ill-considered censorious assault from Congress.
Letter of Gary McDowell, Director of the Institute for U.S.
Studies, University of London, to Representative William
Delahunt (December 3, 1998).
It is important to note that the Senate expunged the
censure of President Andrew Jackson only three years later.
Register of Debates, 24th Congress, 2d Sess. 379-418, 427-506
(1837), see discussion in Fisher, Constitutional Conflicts
Between Congress and the President, 54-55 (4th ed. 1997).
This is significant because the word expungement, the
phrase `expungement from the record', has legal as well
as historical significance. It doesn't mean we just
turn our back on it. It means it never happened. If
somebody is convicted of a crime and they later go back
to court after their conviction is over and they've
served their time, if they petition the court to
expunge the record, it means they lawfully can answer
under oath that they have never been convicted of a
crime because it never happened. And on any given date,
any future Congress could by a simple majority vote
take this piece of paper and erase it from the history
books of America, erase its significance, erase its
longevity and erase its effect. I don't see that as a
significant rebuke at all.
Markup Session, Articles of Impeachment of William Jefferson
Clinton, Statement of Representative James E. Rogan, December
12, 1998, at 310.
Constitutional scholar John O. McGinnis testified before
the Committee that:
The current interest in creating new forms of
sanctions for the President reflects a cavalier
attitude toward constitutional governance, and indeed
illustrates the kind of lasting damage that the country
risks from presidential misconduct. If a President
cannot legitimately deny that he has breached the
public trust there will be a widespread feeling that he
must be punished. He or his supporters then may be
willing to trade the prerogatives of his office for
their personal or political benefit. Thus one way a
President who has committed serious misconduct poses a
threat to the Republic, is the increased likelihood
that he will agree to disastrous constitutional
precedents to protect his own tenure.
Hearing on ``The Background and History of Impeachment,''
before the Subcommittee on the Constitution of the House
Committee on the Judiciary, 105th Cong., 2d Sess., (Nov. 9,
1998) (written statement of Professor John O. McGinnis,
Professor of Law, Yeshiva University Cardozo School of Law) at
19.
Representative Canady underscored this point during the
markup of Articles of Impeachment:
Now, we have heard many suggestions about what will
happen if this President is impeached. We have heard
horror story after horror story. But do we have such
fear of following the path marked out for us by the
Constitution that we would take it upon ourselves to go
down a different path, a path of our own choosing? Will
we let our faith in the Constitution be put aside and
overwhelmed by the fears that have been feverishly
propagated by the President's defenders? Now, there is
no question that this is a momentous issue. There is no
question that impeaching a President of the United
States is a momentous act. But this is not a
legislative coup d'etat. This is a constitutional
process. . . . We have made statements, and I have made
statements about the President's conduct, which I have
concluded more in sorrow than in anger. But the facts
point to the conclusion that the President has been
more concerned with maintaining his personal power than
with maintaining the dignity and the integrity of the
high office entrusted to him under our Constitution.
Markup Session, Articles of Impeachment of William Jefferson
Clinton, Statement of Representative Charles T. Canady,
December 12, 1998, at 208-12.
VII. ADDITIONAL VIEWS
----------
ADDITIONAL VIEWS OF HON. BILL McCOLLUM
Chairman, Subcommittee on Crime, Committee on the Judiciary
introduction
I have carefully reviewed the entire record regarding the
allegations of criminal wrongdoing by President Clinton. And it
is with a heavy heart that I have concluded that the evidence
establishes clearly and convincingly that President Clinton is
an oath breaker and a law breaker and should be impeached.
On January 20, 1993, William Jefferson Clinton raised his
right hand, placed his left hand on the Bible, and solemnly
swore an oath before Congress, the American people, a watching
world, and Almighty God to ``faithfully execute the Office of
President of the United States, and . . . to the best of [his]
ability, preserve, protect and defend the Constitution of the
United States.'' That oath obligated the President to
faithfully discharge his duties as the chief law enforcement
officer of the land and commander-in-chief of the armed forces.
Again, on January 17, 1998, before a United States District
Court judge in a federal civil rights suit, and on August 17,
1998, before a federal grand jury, President Clinton took an
oath to ``tell the truth, the whole truth, and nothing but the
truth, so help me God.'' Far from keeping his solemn oaths,
President Clinton actively sought to thwart the due
administration of justice by repeatedly committing the felony
crimes of perjury, witness tampering, and obstruction of
justice. He has also repeatedly lied to the American people and
to the United States Congress. President William Jefferson
Clinton should be impeached.
analysis
There are three principal considerations in determining
whether President Clinton should be impeached: Did he commit
any of the crimes for which he stands accused? If so, are such
crimes impeachable offenses under the U.S. Constitution? And if
they are impeachable, is there any reason why the U.S. House of
Representatives, in its discretion, should not impeach him, and
what might be the consequences of such inaction?
When considered objectively apart from the hype, the
evidence examined by the House Judiciary Committee
overwhelmingly establishes that President Clinton committed not
one, but numerous serious felony crimes. There is little doubt
that a prosecutor could bring the case to trial, and a strong
likelihood that the jury would convict President Clinton for
several, if not all, the charged crimes.
Encouraging Ms. Lewinsky's false affidavit and relying on it
Long before Ms. Lewinsky was subpoenaed in the Jones v.
Clinton case, President Clinton and Ms. Lewinsky reached an
understanding that they would deny any relationship between
them. Ms. Lewinsky learned from the President that her name was
on the Jones v. Clinton witness list. She asked him what to do
if she was subpoenaed, and the President suggested she could
submit an affidavit that might keep her from having to testify.
Ms. Lewinsky testified that she understood President Clinton's
suggestion to mean she might be able to execute an affidavit
that would avoid her having to disclose the true nature of
their relationship. While saying the President never told her
to lie in the affidavit, Ms. Lewinsky took his suggestion to
file an affidavit, in conjunction with their previous agreement
to deny the relationship, and the absence of any suggestion
from him that she tell the truth in the affidavit, to mean that
he expected her to deny the relationship in the affidavit.
Indeed, in the very same conversation in which President
Clinton suggested she file an affidavit if subpoenaed, he
reminded her of the cover stories they had previously
fabricated and encouraged her to continue using them.
Ms. Lewinsky carried out the plan and filed a false
affidavit, in which she denied the relationship with President
Clinton, in the Jones v. Clinton case. During the President's
civil deposition President Clinton's attorney, Robert Bennett,
stated that the President was fully aware of the contents of
Ms. Lewinsky's affidavit. Whether or not the President
explicitly asked her to file the false affidavit, he clearly
encouraged her to, planning to rely on it in his civil
deposition, and then doing so. As such, President Clinton
committed the crime of obstructing justice.
Concealing evidence
When Ms. Lewinsky was served with a subpoena to testify in
the Jones v. Clinton case, she was also served with a subpoena
to produce every gift given to her by President Clinton. Nine
days later (on December 28, 1997) she met with the President
and expressed concern about the gifts being subpoenaed and
particularly about the hat pin named in the subpoena--the first
gift he had ever given her. The President asked her if she had
told anyone about the hat pin and she said no. Ms. Lewinsky
testified that she asked President Clinton if she should put
the gifts away outside her house or possibly give them to
somebody like Betty Currie. She testified that his response was
noncommittal.
In his testimony before the federal grand jury the
President said that he told Ms. Lewinsky that if the lawyers
for Ms. Jones asked for gifts she would have to give them what
she had. She testified that President Clinton never said
anything to give her that impression. On the contrary, she was
left with the opposite impression: that she was supposed to
deny their existence and do whatever was necessary to conceal
them. Ms. Lewinsky testified that later that same day Mrs.
Currie called her on a cell phone about picking up
``something'' from her and then came by Ms. Lewinsky's place,
saying that the President told her (Mrs. Currie) that Ms.
Lewinsky wanted her (Mrs. Currie) to keep to some things for
her (Ms. Lewinsky). Ms. Lewinsky boxed up most of the gifts and
gave them to Mrs. Currie, who took them home and stored them
beneath her bed.
Mrs. Currie testified that Ms. Lewinsky, not Mrs. Currie,
placed the call and raised the subject of the gifts, but when
confronted with the contrary statement of Ms. Lewinsky, Mrs.
Currie changed her testimony and said she didn't remember who
made the call but that Ms. Lewinsky's memory may be better than
her own. Telephone records show Mrs. Currie made a cell phone
call to Ms. Lewinsky on the afternoon in question. Furthermore,
it would have been completely out of character for Mrs. Currie
to have taken the action without the President's direction or
approval inasmuch as she always checked with him before she did
anything involving Ms. Lewinsky. And finally, if the President
had truly suggested to Ms. Lewinsky that she produce the gifts
to Ms. Jones' attorneys she would not have turned right around
and called Mrs. Currie to give the gifts to her. The evidence
clearly and convincingly leads to the conclusion that Ms.
Lewinsky told the truth about the gifts and that the President
orchestrated their concealment, or, at a minimum, participated
in a scheme to conceal them. As such, President Clinton
committed the crime of obstruction of justice.
Perjury in a civil case before the federal judge
On January 17, 1998, President Clinton gave sworn testimony
by deposition before Judge Wright in the Jones v. Clinton case.
When he did so he committed perjury repeatedly by testifying
that: he had not had sexual relations, a sexual affair, or a
sexual relationship with Ms. Lewinsky; he could not recall
being alone with her, when he had been alone with her on
numerous occasions when they had engaged in sexual activities;
and he could not recall giving her any gifts, when he had given
her numerous gifts and they were the subject of great concern
during several conversations with her in the month preceding
his deposition. A fair and objective review of the evidence
necessarily leads to the conclusion that the President
knowingly and willfully lied about material matters numerous
times under oath in the deposition. It requires creative and
tortured technical arguments about the definition of perjury--
arguments without legal merit--to come to any conclusion other
than that President Clinton repeatedly committed the crime of
perjury in his deposition in the Jones v. Clinton case.
Witness tampering
During President Clinton's deposition in the Jones v.
Clinton case, the President used the cover stories involving
Betty Currie that he and Ms. Lewinsky had fabricated. Within
hours of the deposition, he called Mrs. Currie and asked her to
come to the White House on the following day, a Sunday (January
18, 1998). He told her of the deposition and then made a series
of statements regarding his relationship with Ms. Lewinsky. He
stated, in succession: ``You were always there when she was
there, right? We were never really alone'; ``you could see and
hear everything'; ``Monica came on to me, and I never touched
her, right?'' and ``she wanted to have sex with me, and I can't
do that.'' Mrs. Currie said she felt that President Clinton
wanted her to agree with his statements and made these remarks
to see her reaction. She testified that she indicated to the
President her agreement, although she knew the President and
Lewinsky had been alone. A couple of days later the President
again met with her and, according to Mrs. Currie, went over
precisely the same points. All of these statements volunteered
by the President to Mrs. Currie were consistent with the
testimony given in his deposition, but were false. And the
President knew they were false.
President Clinton claims that he was just trying to refresh
his memory when he made these statements to Mrs. Currie. His
assertion is highly implausible. For example, how could Mrs.
Currie know whether the President and Ms. Lewinsky were ever
alone, or whether she (Mrs Currie) ``could see and hear
everything,'' or whether Ms. Lewinsky ``came on to [the
President],'' or that he ``never touched her'' or that ``she
wanted to have sex with [the President], and [he] can't do
that.'' The only reasonable conclusion is that President
Clinton was attempting to enlist her as a witness to back up
his false testimony. In doing so President Clinton committed
the crime of obstruction of justice and the crime of witness
tampering. The fact that Mrs. Currie was not on the witness
list in the Jones v. Clinton case is irrelevant. Under the law,
all that is required is that the President had reason to
believe that Mrs. Currie might be called to testify.
Grand jury perjury
And finally, President Clinton clearly committed perjury in
his testimony before the federal grand jury. Ms. Lewinsky
testified before the grand jury that the President engaged in
sexual acts that were spelled out in the court's definition in
the Jones v. Clinton case. In his grand jury testimony the
President specifically denied these activities. Lewinsky's
testimony is credible and the President's is not. Numerous
friends, family members and even medical professionals visited
by Ms. Lewinsky testified and corroborated Ms. Lewinsky's
testimony in great detail. Ms. Lewinsky discussed these matters
with these witnesses contemporaneously to the time when she
engaged in the acts with the President. The evidence
overwhelmingly establishes that President Clinton committed the
crime of perjury while testifying before the grand jury.
Impeachable Offenses
Perjury, obstruction of justice, witness tampering and
bribery of a witness are all equally grave crimes that
undermine the integrity of the judicial system. When people lie
under oath in testifying in a civil case or encourage others to
do so or conceal evidence or get others to conceal evidence,
they prevent at least one of the parties to the suit from
receiving a just and fair decision by the court. It is worth
noting that the crime of perjury is punished more severely in
the federal courts than the crime of bribery. To suggest that
perjury and obstruction of justice do not rise to the level of
``treason, bribery and other high crimes and misdemeanors'' as
contemplated for impeachment by the founding fathers defies
both common sense and the state of common law in England at the
time the U.S. Constitution was written.
Having concluded that the President committed the
impeachable offenses of perjury and obstruction of justice, the
question must be asked, what would be the consequences of
failing to impeach the President? Such inaction in a notorious
case of criminal wrongdoing would send a terrible message to
those who testify in civil cases and before grand juries in the
future.
Studies show that perjury is occurring more frequently in
our courts. Contrary to what some have asserted there are
numerous recent examples of federal prosecution of perjury in
civil cases. Indeed, there are currently 115 people in federal
prison today for perjury in civil cases. If the President is
not impeached for these crimes a clear and harmful message will
be sent across the country: That there is a double standard,
with the President of the United States being exempted from the
force of law in these matters, and that these crimes aren't as
serious as was once assumed. It is also probable that the
failure to impeach in such a notorious case involving so many
perjurious statements would lead to more instances of perjury.
Furthermore, failure to impeach would make it more difficult
for future Congresses to impeach federal judges for perjury and
like crimes. As such, failure to impeach would fundamentally
undermine the integrity of our court system.
At the same time, there would be serious repercussions in
the U.S. Armed Forces if the Commander-in-Chief were to be held
to a dramatically lower standard than that applied to officers
and enlisted personnel. The men and women in the military would
routinely be removed from duty and discharged from service if
they engaged in the non-criminal activities that the President
engaged in with Ms. Lewinsky, and would face certain court
martial if they committed like criminal conduct.
Conclusion
The Committee on the Judiciary has carefully examined
voluminous evidence, including thousands of pages of sworn
testimony, regarding the alleged criminal wrongdoing of
President Clinton. The evidence clearly and convincingly
establishes that the President, with premeditation, engaged in
a pattern of illegal conduct over an extended period of time,
so as to prevent a federal court and a federal grand jury from
uncovering the truth about his relationship with Ms. Lewinsky.
His repeated crimes include perjury, witness tampering and
obstruction of justice. These felony crimes are impeachable
offenses within the meaning of the U.S. Constitution. President
Clinton should be impeached by the House of Representatives.
Bill McCollum.
ADDITIONAL VIEWS OF MR. COBLE, MR. GALLEGLY, AND MRS. BONO
the role of the committee on the judiciary in a presidential
impeachment inquiry
While there have been several impeachment inquiries
conducted concerning the conduct of members of the judicial
branch, the William Jefferson Clinton impeachment inquiry was
only the second this century, and the third in our nation's
history, to investigate the President of the United States. A
significant question from the outset was, how were we to
proceed?
The distinguished Chairman of our Committee, the Honorable
Henry J. Hyde, is not only an astute legislator and lawyer, he
is also a student of history. Recognizing that the impeachment
of President Andrew Johnson was riddled with problems--it
involved high political tensions brought about by the ending of
the Civil War; it played out over eighteen months; the
originating committee was supplanted by a politically stacked
committee in a new Congress; etc.--Mr. Hyde thus spent a
significant amount of his time studying the impeachment inquiry
of President Richard M. Nixon. That inquiry took place in 1973
and 1974 in the Committee on the Judiciary under the
chairmanship of Representative Peter W. Rodino, Jr. of New
Jersey--a Democrat. So impressed was Chairman Hyde with the
perceived fairness and due process of the Nixon inquiry, he
made a historically momentous decision to, as closely as
possible, adhere to the precedents of that proceeding. Thus,
our committee set out to follow the path of ``the Rodino
model.''
On September 9, 1998 the office of the Independent Counsel,
Mr. Kenneth W. Starr, delivered to the House of Representatives
a report that contained what the Counsel portrayed as
``substantial and credible information that President William
Jefferson Clinton committed acts that may constitute grounds
for an impeachment.'' This report was delivered pursuant to
Section 595(c) Title 28 of the United States Code, which is
part of the Ethics in Government Act. On September 18, 1998,
the House passed a Resolution which directed the Independent
Counsel report be referred to our Committee with instructions
that it be reviewed and released to the public by September 28,
1998. After that on October 8, 1998 by a vote of 258-176 the
House approved a resolution directing our Committee to conduct
an impeachment inquiry.
At the outset of the work on the Starr referral, Chairman
Hyde attempted to guide our Committee on a set of fixed
principles which included:
``--that no person is above the law, not even the
President;
--that we must submit ourselves to the letter and spirit of
the Constitution;
--that we must constantly strive to be fair, thorough, and
expeditious in all that we do;
--that we must be tireless in gathering and reviewing all
of the relevant facts;
--and that we must keep the American people well informed,
in part by giving them as much information as possible.''
In addition, he also adhered to his earlier decision to
follow the Rodino model. Two key documents from 1974 were
updated and reprinted as committee documents. One--
``Impeachment--Selected Materials'' was a recitation of past
impeachment precedents, and the other ``Constitutional Grounds
for Presidential Impeachment: Modern Precedents'', was an
updated staff report based directly on the same type of report
done by the Rodino staff in 1974.
Although the staff study on the question of an impeachment
standard was done early in the Nixon inquiry, the Rodino
Committee never actually met and discussed the issue. Mr.
Rodino recognized then, as did Chairman Hyde some twenty-four
years later, that there is no one standard for what constitutes
impeachable conduct. The Framers never intended such a
standard. As Representative Lawrence J. Hogan said in the
closing debate in 1974 about this question. ``. . . Now the
first responsibility facing members of this committee was to
try to and define what an impeachable offense is. The
Constitution does not define it. The precedents which are
sparse do not give us any real guidance as to what constitutes
an impeachable offense. So each of us in our own conscience, in
our own mind, in our own heart, after much study, had to decide
for ourselves what constitutes an impeachable offense . . .''
Despite this Chairman Hyde once again went the extra step and
actually had Representative Charles T. Canady, Chairman of the
Subcommittee on the Constitution, convene a special one day
hearing on November 9, 1998 concerning the background and
history of impeachment, at which a lengthy list of scholars
appeared. Following this, our Committee upon Chairman Hyde's
recommendation also:
--approved a set of inquiry procedures which were taken
almost verbatim from the Rodino committee procedures;
--throughout the hearings utilized the five minute rule and
generously allotted additional time to Members when needed, and
also allowed Members a ten minute opening statement prior to
the final debate on the articles of impeachment; and
--allowed the President of the United States the
opportunity to have his counsel represent him at committee
deliberations, and to question any witnesses summoned by the
committee, and to call witnesses to testify on behalf of the
President, and to make an oral and written presentation on the
evidence before the committee.
For the historical record, a major difference between the
Hyde and Rodino inquiries was openness. With the exception of a
couple of occasions when the Hyde Committee went into executive
session to discuss appropriately sensitive matters, our
impeachment inquiry of the President was held in public before
the American people. At every opportunity, material was made
public, even though the subject matter at times was extremely
reprehensible and disgusting. Nevertheless, Chairman Hyde felt
honor bound to operate in open, so that all of our citizens
could have faith in the Committee's findings no matter where
they led us.
History is forever. It covers the pages of the annals of
our time for one and all to see, especially our generations to
come. The impeachment inquiry conducted under the leadership of
Chairman Henry J. Hyde was public, fair, and just. Mr. Hyde
often likes to remind us of the oath every Member of Congress
is administered upon their swearing in: ``I do solemnly swear
that I will support and defend the Constitution of the United
States against all enemies, foreign and domestic; that I will
bear true faith and allegiance to the same; that I take this
obligation freely, without any mental reservation or purpose of
evasion; and that I will well and faithfully discharge the
duties of the office on which I am about to enter. So help me
God.''
Our Chairman often quotes ``A Man for all Seasons.'' In it
at one point Sir Thomas More tells his daughter, ``When you
take an oath, you hold your soul in your hands, and if you
break that oath, you open up your fingers and your soul runs
through them and it is lost.'' At certain times in history,
various individuals are placed in a position not of their own
choosing. They must step into the arena and with no control of
the events or forces to come, they must stand and defend their
soul and the principles that form the very foundation of that
soul. Our nation was blessed that at this time in our history,
such a man walked amongst us, and in the great American
tradition, persevered and did that which was both right and
just. It was an honor to serve with Henry J. Hyde, and thus
will history so record.
Howard Coble.
Elton Gallegly.
Mary Bono.
ADDITIONAL VIEWS OF HON. CHARLES T. CANADY
``Facts are stubborn things; and whatever may be our
wishes, our inclinations, or the dictates of our passions, they
cannot alter the state of facts and evidence.''--John Adams.
In the case before the Committee, the facts show a
sustained pattern of lying under oath and multiple acts of
obstruction of justice by the President of the United States.
First, the President through obstruction of justice and false
statements under oath sought to conceal the truth in a sexual
harassment case in order to defeat the rights of the plaintiff
in that case. Then, the President engaged in a nearly year-long
cover-up of those earlier offenses--a cover-up that included
lying under oath before a federal grand jury and in statements
submitted to the Judiciary Committee.
All the attacks on the investigation conducted by the
Independent Counsel and on the proceedings of the Judiciary
Committee do nothing to alter the facts of the case against
William Jefferson Clinton. All the attempts to palliate cannot
alter the stubborn facts of the case against the President. The
facts cannot be wished away, they cannot be ignored, they
cannot be treated as trivial. The facts make a compelling case
for impeachment.
The President has engaged in a course of conduct which
evidences a calculated contempt for the rule of law. He has
directly and repeatedly violated his oath of office to
``faithfully execute the office'' of President, and breached
his duty to ``take care that the laws be faithfully executed.''
He has repeatedly put his selfish personal interests ahead of
the dignity and integrity of the high office entrusted to him
by the people.
Soon after the adoption of the Constitution, Alexander
Hamilton wrote that ``an inviolable respect for the
Constitution and Laws'' is the ``most sacred duty and the
greatest source of security in a Republic.'' Hamilton
understood that respect for the Constitution itself grows out
of a general respect for the law. And he understood the
essential connection between respect for law and the
maintenance of liberty in a Republic. Without respect for the
law, the Constitution is without an adequate foundation.
Without respect for the law, our freedom is at risk. Thus,
according to Hamilton, those who ``set examples which undermine
or subvert the authority of the laws lead us from freedom to
slavery . . .''
President Clinton by his persistent and calculated
misconduct has set a pernicious example of lawlessness--an
example which by its very nature subverts respect for the law.
His perjury and obstruction of justice have become a byword.
The perverse example he has set the inevitable effect of
undermining the integrity of the judicial process.
Contrary to the claims of his defenders, the offenses of
which the President is guilty are not mere private offenses.
Although his crimes were occasioned by his personal misconduct,
when the President attempted to obstruct justice and willfully
gave false testimony under oath he committed public wrongs.
Perjury and obstruction of justice are not private matters;
they are crimes against the system of justice.
Since the early days of our Republic, perjury has been
considered a grave offense against justice. John Jay, the first
Chief Justice of the United States, said that ``there is no
crime more extensively pernicious to society'' than perjury.
According to Jay, perjury ``discolors and poisons the streams
of justice, and by substituting falsehood for truth, saps the
foundations of personal and public rights.''
The maintenance in office of a persistent perjurer is
inconsistent with maintenance of the rule of law. The
impeachment process is intended to preserve the rule of law
against the corrupt conduct of the Chief Executive and other
high officials. The corrupt conduct of President Clinton is
exactly the sort of conduct that the impeachment power was
designed to address. The impeachment power must be used to call
him to account for his crimes.
nixon tax fraud article of impeachment
In their submission to the Committee, Counsel for the
President argue that the failure in 1974 of the Committee to
adopt an article of impeachment against President Nixon for tax
fraud supports the claim that current charges against President
Clinton do not rise to the level of impeachable offenses. The
President's lawyers contend that the tax fraud article against
President Nixon ``was not approved because the otherwise
conflicting views of the Committee majority and minority were
in concord: submission of a false tax return was not so related
to exercise of the President Office as to trigger
impeachment.''
Wayne Owens and Robert F. Drinan, who were members of the
Committee in 1974, have recently testified to the Committee in
support of this argument. In a recent opinion piece they assert
that in 1974 the Committee decided by a vote of 26 to 12 that
President Nixon ``should not be impeached for tax fraud because
it did not involve official conduct or abuse of presidential
powers.''
It is, of course, undisputed that the Judiciary Committee
rejected the proposed tax fraud article against President
Nixon. It is also undisputed that certain Committee members
stated the view that tax fraud would not be an impeachable
offense. That view is illustrated by the comments of Rep.
Waldie that in the tax fraud article thee was ``not an abuse of
power sufficient to warrant impeachment . . .'' Similar views
were expressed by Rep. Hogan and Rep. Mayne. Rep. Railsback
took the position that there was ``a serious question'' whether
misconduct of the President in connection with his taxes would
be impeachable.
Other members who opposed the tax fraud article based their
opposition on somewhat different grounds. Rep. Thornton based
his opposition to the tax fraud article on the ``view that
these charges may be reached in due course in the regular
process of law.'' Rep. Butler stated his view that the tax
fraud article should be rejected on prudential grounds: ``Sound
judgment would indicate that we not add this article to the
trial burden we already have.''
The record is clear, however, that the overwhelming
majority of those who expressed a view in the debate in
opposition to the tax fraud article based their opposition on
the insufficiency of the evidence, and not on the view that tax
fraud, if proven, would not be an impeachable offense.
The comments of Wayne Owens in the debate in 1974 are quite
instructive. Those comments directly contradict the view that
Mr. Owens has expressed in recent days. Although Mr. Owens in
1974 expressed his ``belief'' that President Nixon was guilty
of misconduct in connection with his taxes, he clearly stated
his conclusion that ``on the evidence available'' Mr. Nixon's
offenses were not impeachable. Mr. Owens spoke of the need for
``hard evidence'' and discussed his unavailing efforts to
obtain additional evidence that would tie ``the President to
the fraudulent deed'' or that would otherwise ``close the
inferential gap that has to be closed in order to charge the
President.'' He concluded his comments in the 1974 debate by
urging the members of the Committee ``to reject this article''
``based on that lack of evidence.''
In addition to Mr. Owens, eleven members of the Committee
stated the view that there was not sufficient evidence of tax
fraud to support the article against President Nixon. (Wiggins:
``fraud . . . is wholly unsupported in the evidence.'' McClory:
``no substantial evidence of any tax fraud.'' Sandman: ``There
was absolutely no intent to defraud here.'' Lott: ``mere
mistakes or negligence by the President in filing his tax
returns should clearly not be grounds for impeachment.''
Maraziti: discusing absence of evidence of fraud. Dennis: ``no
fraud has been found.'' Cohen: questioning whether ``in fact
there was criminal fraud involved.'' Hungate: ``I think there
is a case here but in my judgment I am having trouble deciding
if it has as yet been made.'' Latta: only ``bad judgment and
gross negligence.'' Fish: ``There is not to be found before us
evidence that the President acted willfully to evade his
taxes.'' Moorhead: ``there is no showing that President Nixon
in anyway engaged in any fraud.'')
The group of those who found the evidence insufficient
included moderate Democrats like Rep. Hungate and Rep. Owens,
as well as Republicans like Rep. Fish, Rep. Cohen, and Rep.
McClory, who all supported the impeachment of President Nixon.
In light of all these facts, it is not credible to assert
that the Committee in 1974 determined that tax fraud by the
President would not be an impeachable offense. The failure of
the Committee to adopt the tax fraud article against President
Nixon simply does not support the claim of President Clinton's
lawyers that the offenses charged against him do not rise to
the level of impeachable offenses.
In the Committee debate in 1974 a compelling case was made
that tax fraud by a President--if proven by sufficient
evidence--would be an impeachable offense. Rep. Brooks, who
later served as chairman of the Committee, said:
No man in America can be above the law. It is our duty
to establish now that evidence of specific statutory
crimes and constitutional violations by the President
of the United States will subject all Presidents now
and in the future to impeachment . . .
No President is exempt under our U.S. Constitution and
the laws of the United States from accountability for
personal misdeeds any more than he is for official
misdeeds. And I think that we on this Committee in our
effort to fairly evaluate the President's activities
must show the American people that all men are treated
equally under the law.
Prof. Charles Black stated it succinctly: ``A large-scale
tax cheat is not a viable chief magistrate.'' What is true of
tax fraud is also true of a persistent pattern of perjury by
the President. An incorrigible perjurer is not a viable chief
magistrate.
Charles T. Canady.
ADDITIONAL VIEWS OF HON. STEVE BUYER
The Judiciary Committee of the U.S. House of
Representatives of the 105th Congress recently completed an
impeachment inquiry of President William Jefferson Clinton. The
purpose of the inquiry was to defend the Constitution, search
for the truth, and follow the rule of law.
The wisdom of the Founding Fathers is truly amazing. They
understood that the nature of the human heart struggles between
good and evil. So, the Founders created a system for
accountability, comprised of checks and balances. If corruption
invaded the political system, the Constitution provides a means
to address it. The Founders felt impeachment was so important,
language regarding impeachment appears in six different places
in the Constitution.1 The power to impeach rests in
the House of Representatives, while the power to remove the
President resides in the Senate.
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\1\ The clauses discussing congressional power are: ``The House of
Representatives . . . shall have the sole power of Impeachment.'' U.S.
Const. art. I, Sec. 2; ``The Senate shall have the sole Power to try
all Impeachments. When sitting for that Purpose, they shall be on Oath
or Affirmation. When the President of the United States is tried, the
Chief Justice shall preside: And No Person shall be convicted without
the Concurrence of two thirds of the Members present.'' U.S. Const.
art. I, Sec. 3. ``The President, Vice President and all civil Officers,
of the United States, shall be removed from Office on Impeachment for,
and Conviction of, Treason, Bribery, or other High Crimes and
Misdemeanors.'' U.S. Const. art. II. Sec. 4.
---------------------------------------------------------------------------
In 1974, the House engaged in a similar impeachment
investigation of President Richard M. Nixon. At that time, the
House investigated the facts as reported by the Judiciary
Committee in order to determine whether the allegations
presented reached the level of impeachable offenses. In the
present case, the purpose of the inquiry by the Judiciary
Committee and the House of Representatives was to determine
whether the evidence contained in the Referral by the Office of
the Independent Counsel (``OIC'') gives rise to impeachment.
In order to place the allegations against President Clinton
in the proper context, I will first briefly examine the
historical underpinnings of the impeachment clause in terms of
our national heritage.2 I will then discuss the
nature of the Paula Corbin Jones sexual harassment lawsuit,
which gave rise to the investigation of the President. Further,
I will review the evidence and allegations presented to the
Judiciary Committee by the OIC, as well as the President's
defense as advanced by scholars, historians and legal
practitioners. I conclude by explaining why I believe the
evidence presented suggests that the President committed
impeachable offenses. Finally, I will address censure and why I
believe it is extra-constitutional.
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\2\ On November 9, 1998, the Constitution Subcommittee of the House
Judiciary Committee conducted hearings on the background and history of
impeachment wherein we were benefitted by the testimony of numerous
scholars and historians. I will refer to the testimony of such
individuals. As numerous scholars advised, the Framers of the
Constitution purposely used the phrase ``Treason, Bribery and other
high Crimes and Misdemeanors,'' as it is rooted in approximately 400
years of English common law.
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i. historical analysis of ``treason, bribery and other high crimes and
misdemeanors''
At the Constitutional Convention of 1787 the Framers
arranged three branches of government with an elaborate system
of checks and balances. An integral part of the power over the
executive branch is found in Congress' impeachment
powers.3 As stated in a report prepared by the House
Judiciary Committee staff in 1974 regarding impeachment, the
evidence from the Constitutional Convention ``shows that the
framers intended impeachment to be a constitutional safeguard
of the public trust, the powers of government conferred upon
the President and other civil officers, and the division of
powers among the legislative, judicial and executive
departments.'' 4 Congress itself has the power of
impeachment, a process of presenting and prosecuting charges
against the President, Vice President and other civil officers.
Under the Constitution, the House does not have the power to
punish. In trying cases of impeachment, it is the Senate that
acts as the high court. In 1868, the Senate ceased in order to
call itself ``a high court of impeachment.''
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\3\ See supra note 1.
\4\ Staff of the House Judiciary Committee, 93rd Cong., Report by
the Staff of the Impeachment Inquiry on the Constitutional Grounds for
Presidential Impeachment 709 (Comm. Print 1974) [hereinafter staff
report]
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In practice, whenever the House of Representatives decides
to bring the President of the United States before the bar of
the Senate, it adopts, by resolution, Articles of Impeachment
approved by the House Judiciary Committee, charging the
President with certain high crimes and misdemeanors and
enumerating in sufficient detail as to place him on notice of
his particular offenses. If the resolution passes the House by
simple majority vote, thereupon it chooses leaders to direct
the prosecution before the Senate. The case is then conducted
in the form of a trial, under the Senate's own rules of due
process, with the Chief Justice of the Supreme Court presiding.
The prosecution states its case; witnesses for and against the
accused can be heard; and attorneys on both sides make their
arguments. When the case is fully presented the Senators vote,
and if two-thirds of the members present concur in holding the
accused guilty, he stands convicted and removed from office;
however, if there is a vote of less than two-thirds of the
Members present, he is acquitted.
The penalty which the Senate can impose upon any person
convicted in a case of impeachment is strictly limited to
removal of the offender from office and the imposition of a
disqualification to hold and enjoy any future office of honor,
trust, or profit under the United States. Any person convicted,
however, is still liable, after his removal from office, to
indictment, trial, judgment, and punishment for his offenses
according to law.
The jurisdiction of the Senate as a court of impeachment
extends only over the President, Vice President, and the civil
officers of the United States for the offenses of treason,
bribery, or other high crimes and misdemeanors. What conduct
constitutes an impeachable offense is determined by the House.
At the Constitutional Convention, originally George Mason
favored including the word ``maladministration'' but he deemed
the phrase too ambiguous, and capable of bestowing excessive
power in the Senate.5 As a result, the phrase was
replaced with ``High crimes and misdemeanors'' in order to
better define the standard.6
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\5\ The Background and History of Impeachment: Hearings Before the
Subcommittee on the Constitution of the House Judiciary Committee,
105th Cong., 2nd Sess. (1998) (statement of Hon. Griffin E. Bell).
\6\ Id. It is important to note that the phrase is not intended to
include only criminal offenses, rather it stems from the word
``maladministration'' proposed by George Mason. See Staff Report 12.
---------------------------------------------------------------------------
Scholars and legal historians differ on exactly what the
standard is intended to include. The Committee heard testimony
from several scholars who contend that the phrase is narrow and
intended to cover conduct relating to abuse of official power
or public acts affecting the state,7 but others
argued that the phrase is applicable to objective misconduct
relating to fitness in office.8 One of the witnesses
before the Subcommittee on the Constitution stated:
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\7\ See The Background and History of Impeachment: Hearings Before
the Subcommittee on the Constitution of the House Judiciary Committee,
105th Cong., 2nd Sess. (1998) (statements of Susan Low Bloch, Professor
of Law, Georgetown University, and Cass R. Sunstein, Professor of Law,
University of Chicago Law School). Many also contend that ``private''
actions of the President do not give rise to impeachable behavior. See
e.g., The Background and History of Impeachment: Hearings Before the
Subcommittee on the Constitution of the House Judiciary Committee,
105th Cong., 2nd Sess. (1998) (statement of Arthur Schlesinger, Jr.,
Professor of History, City University of New York).
\8\ The Background and History of Impeachment: Hearings Before the
Subcommittee on the Constitution of the House Judiciary Committee,
105th Cong., 2nd Sess. (1998) (statement of John O. McGinnis, Professor
of Law, Benjamin N. Cardozo School of Law, Yeshiva University).
To be sure, serious crimes committed in the actual
performance of official government functions are likely
to constitute impeachable offenses in all cases. But
the scope of the House's impeachment authority is not
confined to such crimes, or even to crimes at all. . .
. [T]he crimes of perjury and obstruction of justice,
like treason and bribery, are quintessentially offenses
against our system of government, visit injury
immediately on society itself, whether or not committed
in connection with the exercise of official government
powers. Indeed, in a society governed by the rule of
law, perjury and obstruction of justice cannot be
tolerated precisely because these crimes subvert the
very judicial processes on which the rule of law so
vitally depends.9
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\9\ The Background and History of Impeachment: Hearings Before the
Subcommittee on the Constitution of the House Judiciary Committee,
105th Cong., 2nd Sess. (1998) (statement of Charles J. Cooper, Esq.).
As noted in the Staff Report of 1974, ``impeachment is a
constitutional remedy addressed to serious offenses against the
system of government . . . they are constitutional wrongs that
subvert the structure of government, or undermine the integrity
of office and even the Constitution itself, and thus are
``high'' offenses . . ..'' 10 The Report also stated
that in impeachment proceedings in English practice and in this
country, ``[T]he emphasis has been on the significant effects
of the conduct-undermining the integrity of office, disregard
of constitutional duties and oath of office, arrogation of
power, abuse of the governmental process, [and] adverse impact
on the system of government.'' 11
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\10\ Staff Report 26.
\11\ Id.
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I concur with the premise that while the crimes alleged
against the President may not directly involve the exercise of
executive powers, excepting the issue of possible misuse of
executive privileges, the alleged crimes, plainly, do involve
the violation of the president's executive duties.12
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\12\ The Judiciary Committee voted to amend Article IV and deleted
the abuse of power language regarding misuses of the executive
privilege.
---------------------------------------------------------------------------
Relying on the testimony and advice of the legal scholars,
historians and judges that appeared before the Subcommittee on
the Constitution, I will not attempt to define the impeachment
standard. It is best stated by Justice Joseph Story in
``Commentaries on the Constitution'' (1833), the impeachment
power applies to ``political offenses, growing out of personal
misconduct or gross neglect, or usurpation, or habitual
disregard of the public interests, in the discharge of the
duties of political office. These are so various in their
character, and so indefinable in their actual involutions, that
it is almost impossible to provide systematically for them by
positive law.'' 13
---------------------------------------------------------------------------
\13\ See Staff Report 16-17.
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We received testimony regarding impeachment in both English
and American history. It is understood that personal
misconduct, violations of trust, and other charges of a more
private nature can be impeachable offenses.14
Perjury and obstruction of justice drive a stake in the rule of
law. Now the question is whether perjury to conceal private
conduct and other actions to thwart and impede justice in a
civil rights case in federal court, as well as perjury before a
federal grand jury, rise to the level of impeachable offenses.
---------------------------------------------------------------------------
\14\ In 1986 the House of Representatives voted to impeach the
Honorable Harry E. Claiborne. On August 10, 1984, while serving as a
judge of the United States District Court for the District of Nevada,
Judge Claiborne was found guilty by a jury of making a false and
fraudulent income tax return for the calendar years of 1979 and 1980 in
violation of 26 U.S.C. Sec. 7206(1). The House of Representatives
adopted four articles of impeachment charging Judge Claiborne with
willfully and knowingly filing false income tax returns, under penalty
of perjury, for the years 1979 and 1980. One of the articles of
impeachment charged that Judge Claiborne, by willfully and knowingly
filing false income tax returns while serving as a Federal Judge, with
betraying the trust of the people of the United States and reducing
confidence in the integrity and impartiality of the Federal judiciary.
Representative Hamilton Fish, ranking member of the Judiciary Committee
and one of the House managers in the Senate trial stated, ``Judge
Claiborne's actions raise fundamental questions about public confidence
in, and the public's perception of, the Federal court system. They
serve to undermine the confidence of the American people in our
judicial system.'' 132 Cong. Rec. H4713 (daily ed. July 22, 1986).
---------------------------------------------------------------------------
ii. the jones v. clinton civil lawsuit
In May 1994, Paula Corbin Jones filed a sexual harassment
lawsuit 15 against William Jefferson Clinton in the
United States District Court for the Eastern District of
Arkansas.16 Ms. Jones alleged that the sexual
harassment incident took place in a hotel room 17 in
Little Rock, Arkansas, while Mr. Clinton was the Governor of
Arkansas.18 The President denied the allegations and
argued that Ms. Jones did not have the right to proceed against
him because he is a sitting President.19 The Supreme
Court unanimously rejected such an argument stating: ``Like
every other citizen who properly invokes [the] jurisdiction [of
the District Court], [Ms. Jones] has a right to an orderly
disposition of her claims.'' 20 Thus, the Supreme
Court determined that Ms. Jones was entitled to proceed with
her claim as an ordinary litigant, entitled to discovery from
the defendant, President Clinton. The Supreme Court therefore
reaffirmed the proposition that no person is above the law.
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\15\ Title VII of the Civil Rights Act of 1964 does not explicitly
refer to ``sexual harassment'' but makes it unlawful for an employer
with fifteen or more employees to discriminate against applicants for
employment or employees ``because . . . of sex.'' 42 U.S.C. Sec. 2000e-
2(a)(1). Sexual harassment laws have largely developed through judicial
opinions, as well as opinions from the Equal Employment Opportunity
Commission interpreting Title VII's sex discrimination prohibition. See
42 U.S.C. 2000e et. seq. See also Oncale v. Sundowner Offshore
Services, Inc., 118 S.Ct. 998 (1998)(holding that same sex harassment
is actionable under Title VII); Faragher v. City of Boca Raton, 118
S.Ct. 2275 (1998)(holding employer vicariously liable for harassment by
supervisor); Burlington Industries v. Ellerth, 118 S.Ct. 2257
(1998)(same). The Equal Protection Clause of the Fourteenth Amendment
also involves the freedom to be free from gender discrimination unless
it is substantially related to an important government objective. See
Beardsley v. Webb, 30 F.3d 524, 529 (4th Cir. 1994). Intentional sexual
harassment against employers acting under the color of state law is
actionable under the Fourteenth Amendment and Sec. 1983. Id.
\16\ Referral from Independent Counsel Kenneth W. Starr, 105th
Cong., 2d Sess., H.R. Doc. No. 105-310, at 1 (1998) (hereinafter ``OIC
Referral'').
\17\ The allegations in the Jones v. Clinton case are reminiscent
of the facts in the Lewinsky matter. In Jones, the plaintiff alleged
that ``as she left the room . . . the Governor ``detained'' her
momentarily, ``looked sternly'' at her, and said, ``You are smart.
Let's keep this between ourselves.' '' Jones v. Clinton, 990 F. Supp.
657, 664 (1998).
\18\ OIC Referral at 2. Specifically, Ms. Jones alleged that on the
night in question in 1991, Governor Clinton exposed his genitals and
asked her to perform oral sex on him. Id. at 1 n.3. Ms. Jones was an
employee of the Arkansas Industrial Development Corporation at the time
of the alleged incident. Id.
\19\ Id. at 2.
\20\ Jones v. Clinton, 117 S.Ct. 1636, 1652 (1997) (holding, inter
alia, that the Constitution does not afford a sitting president
temporary immunity in ``all but the most exceptional circumstances,''
and that the doctrine of separation of powers does not require the
court to stay civil proceedings against the President).
---------------------------------------------------------------------------
As is common in sexual harassment litigation, a defendant's
past behavior can be relevant and material evidence to
establish a pattern of misconduct to support the present
allegations and the defendant's propensities. In late 1997, the
parties disputed whether the President would be required to
disclose information about past sexual relationships
21 with other women,22 United States
District Judge Susan Webber Wright ruled that ``the plaintiff
[was] entitled to information regarding any individuals with
whom the President had sexual relations . . . and who were . .
. state or federal employees.'' 23 In late December
the President responded to written discovery
requests.24 When asked under oath to identify women
with whom he had sexual relations who were state or federal
employees during a specified limited time frame, the President
responded ``none.'' 25 On January 17, 1998, the
President was questioned under oath at a deposition regarding
sexual relationships with women in the workplace.26
During the deposition, the President denied that he had engaged
in a ``sexual affair, a ``sexual relationship,'' or ``sexual
relations'' with Ms. Lewinsky, while also stating that he ``had
no specific memory of being alone with Ms. Lewinsky, that he
remembered few details of any gifts they might have exchanged,
and indicated that no one except his attorneys had kept him
informed of Ms. Lewinsky's status as a potential witness in the
[Jones v. Clinton] case.'' 27 The evidence shows
that the President's testimony during that deposition was
perjurious, false, and misleading with the motive to hide the
relationship for the purpose to defeat the Jones v. Clinton
suit and deny Ms. Jones her right to a fair trial as an alleged
victim of sexual harassment.
---------------------------------------------------------------------------
\21\ The list of ``Jane Does'' in the Jones v. Clinton case and the
evidence on each of them was held by the Judiciary Committee in
Executive Session and redacted from public dissemination.
\22\ OIC Referral at 2.
\23\ 921-DC-00000461 (Dec. 11, 1997 Order at 3).
\24\ OIC Referral at 2.
\25\ V002-DC-00000053 (President Clinton's Supplemental Responses
to Plaintiff's Second Set of Interrogatories at 2).
\26\ OIC Referral at 3.
\27\ Id. at 3.
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III. The Investigation By the Office of the Independent Counsel
On January 12, 1998, the OIC received information that Ms.
Lewinsky was attempting to influence the testimony of a witness
by the name of Linda Tripp 28 in the Jones v.
Clinton case, and that Ms. Lewinsky intended to provide false
testimony in the case.29 The information was
transmitted to Attorney General Janet Reno, who determined that
an independent counsel should examine the matter for criminal
wrongdoing.30 Pursuant to the Independent Counsel
statute, the Attorney General applied, and received, the
authorization for the jurisdiction of the OIC. Discovery in the
Jones v. Clinton case involving Ms. Lewinsky was then stayed at
the request of the OIC,31 which means that Ms. Jones
was prevented from establishing facts that may have been
otherwise obtainable through Ms. Lewinsky. The criminal
investigation commenced,32 and the results of that
investigation were reported to Congress as required by 28
U.S.C. 595(c).
---------------------------------------------------------------------------
\28\ Linda Tripp was also a witness in the OIC open investigation
regarding the White House travel office firings and the FBI files.
\29\ OIC Referral at 3.
\30\ Id. The Attorney General also received information regarding
Ms. Lewinsky's job search and the possible involvement of Vernon
Jordan. Id. These allegations were similar to allegations in the
ongoing Whitewater investigation regarding possible ``hush money'' paid
to former Deputy Attorney General Webster Hubbel in which Vernon Jordan
was involved. Id.
\31\ Id. at 4; see also Jones v. Clinton, 993 F. Supp. 1217 (1998).
The court which granted the Independent Counsel's motion for limited
intervention and stay of discovery based its decision on three grounds.
Jones v. Clinton, 993 F. Supp. at 1219-1220. Specifically, the court
determined that allowing the evidence of the Lewinsky investigation to
be used in the Jones case might be unduly prejudicial to the President;
see Fed. R. Evid. 403; and might be excluded by the trial judge based
on Ms. Jones' burden in proving her sexual harassment claim. Jones, 993
F. Supp. at 1219. Further, the court determined that the trial must be
conducted as expeditiously as possible. Id. Lastly, the court noted
that the integrity of the independent criminal investigation warranted
excluding evidence concerning Ms. Lewinsky. Id. The court determined
that the risk of exposing information obtained in the pending criminal
investigation outweighed the plaintiff's right to include such
information. Id. at 1220.
\32\ The Independent Counsel was granted jurisdiction to
investigate whether Monica Lewinsky or others suborned perjury,
obstructed justice, intimidated witnesses, or otherwise violated
federal law. OIC Referral, Appendices, Part I, H. Doc. 105-311, at 6-7
(1998) [hereinafter H. Doc. 105-311]. Additionally, it had the
authority to investigate federal crimes, obstruction of justice, and
any material false testimony in violation of criminal law. Id.
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IV. The Findings of the Independent Counsel
In his testimony before the House Judiciary Committee, the
Independent Counsel explained how the relationship between the
President and Ms. Lewinsky became a matter of public
concern.33 First, the President was a defendant in a
sexual harassment case which the Supreme Court ordered to
proceed even though the defendant is a sitting
President.34 Second, ``the law of sexual harassment
and the law of evidence allow the plaintiff to inquire into the
defendant's relationships with other women in the workplace,
which in this case included President Clinton's relationship
with Ms. Lewinsky.'' 35 Third, Judge Wright rejected
the President's objections to such questions.36
Fourth, perjury and obstruction of justice are federal crimes
in civil cases, including sexual harassment cases.37
Fifth, ``the evidence suggests that the President and Ms.
Lewinsky made false statements under oath and obstructed the
judicial process in the Jones v. Clinton case by preventing the
court from obtaining the truth about their relationship.''
38
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\33\ See Statement of Independent Counsel Kenneth W. Starr Before
the House Judiciary Committee, 105th Cong., 2nd Sess. 9-10 (1998).
\34\ Id. at 9. See also Jones v. Clinton, 117 S.Ct. 1636 (1997).
\35\ Statement of Independent Counsel Kenneth W. Starr Before the
House Judiciary Committee, 105th Cong., 2nd Sess. 9 (1998).
\36\ Id.
\37\ Id. at 10; see also United States v. Holland, 22 F.3d 1040,
1047-48 (11th Cir. 1994), cert. denied, 513 U.S. 1109 (1995) (rejecting
that perjury is less serious when made in a civil proceeding); United
States v. McAfee, 8 F.3d 1010, 1013-14 (5th Cir. 1993) (rejecting the
argument that the perjury statute does not apply to civil depositions).
\38\ Statement of Independent Counsel Kenneth W. Starr Before the
House Judiciary Committee, 105th Cong. 2nd Sess. 10 (1998).
---------------------------------------------------------------------------
A. Pattern of deception
The OIC reported to the Committee that between December 5,
1997, and January 17, 1998, the President engaged in a pattern
of deceptive behavior.39 According to the Referral
provided by the OIC, on December 5, 1997, Ms. Jones' attorneys
identified Ms. Lewinsky as a potential witness in the sexual
harassment lawsuit, and the President learned this fact within
a day.40 It is alleged that the President called Ms.
Lewinsky at 2:00 a.m. on the morning of December 17, 1997, and
informed her that she was a potential witness.41
According to Ms. Lewinsky, the President suggested that she
execute an affidavit to deny a sexual relationship and use
``cover stories'' or lies to explain why she visited the Oval
Office on so many occasions.42
---------------------------------------------------------------------------
\39\ Id. at 11.
\40\ Id.
\41\ Id. at 12.
\42\ Id.
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It is important to note that an affidavit is a legal
document executed under oath. Yet, the President was suggesting
that she include falsehoods in the affidavit. The Referral
states that on that date the President and Ms. Lewinsky thus
had an agreement to lie in their sworn affidavits.43
---------------------------------------------------------------------------
\43\ Id. at 13.
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A defendant in pending litigation suggesting that a
potential witness in the lawsuit lie in an affidavit to avoid
being deposed by the plaintiff is a criminal act that flies in
the face of judicial integrity. Every American has the duty
when under oath to tell the truth, the whole truth, and nothing
but the truth in civil and criminal investigations.
Later, on December 23, 1997, the President answered
interrogatories in the Jones v. Clinton case under
oath.44 Once again, the President, under oath,
stated that he had not had sexual relations with any federal
employees during a particular time frame.45 As we
now know, in fact the President did have sexual relations with
a federal employee during the stated time frame. The effect of
such lies was borne by Ms. Jones, who suffered the injustice of
not having her day in court; she was precluded from presenting
all potentially relevant and material evidence to the court.
---------------------------------------------------------------------------
\44\ Id.
\45\ Id.
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On Sunday, December 28, 1997, the President met with Ms.
Lewinsky at the White House and discussed the gifts the two had
exchanged during their relationship.46 ``Ms.
Lewinsky asked the President `how he thought [she] got put on
the witness list.' He speculated that Linda Tripp or one of the
uniformed Secret Service officers had told the Jones' attorneys
about her. When Ms. Lewinsky mentioned her anxiety about the
subpoena's reference to a hat pin, he said `that sort of
bothered [him], too.' He asked whether she had told anyone
about the hat pin, and she assured him that she had not. At
some point in the conversation, Ms. Lewinsky told the
President, `[M]aybe I should put the gifts away outside my
house somewhere or give them to someone, maybe Betty.' Ms.
Lewinsky recalled that the President responded either `I don't
know' or `Let me think about that.' '' 47 According
to Ms. Lewinsky, later that day the President's secretary,
Betty Currie, drove to Ms. Lewinsky's home, picked up the
gifts, and took them to her home where she stored them under
her bed.48
---------------------------------------------------------------------------
\46\ Id. at 14.
\47\ OIC Referral at 101.
\48\ Statement of Independent Counsel Kenneth W. Starr Before the
House Judiciary Committee, 105th Cong. 2nd Sess. 14 (1998).
---------------------------------------------------------------------------
It is important to note that these items were under court
subpoena. They were potential items of evidence in a pending
case. Once again, the facts here demonstrate intent to
circumvent the laws. The President testified to the criminal
grand jury in August that he had no particular concern about
the gifts, yet the circumstantial evidence and the phone
records suggest that Ms. Currie was directed to retrieve the
gifts. Moreover, when asked about the gifts in the deposition
in January 1998 he stated that he did not recall whether he
gave Ms. Lewinsky gifts.49
---------------------------------------------------------------------------
\49\ Id. at 15.
---------------------------------------------------------------------------
B. Ms. Lewinsky's job search when she was a potential witness
After the Supreme Court held that Ms. Jones was entitled to
pursue her case against the President, the facts show that the
President, with the help of his close friend and confidant
Vernon Jordan, was instrumental in finding Ms. Lewinsky
employment.50 The evidence presented suggests that
Vernon Jordan's assistance to Ms. Lewinsky in finding a job was
intended to placate Ms. Lewinsky or ensure that she would not
become a witness against the President.51 The
President wanted to keep Ms. Lewinsky on his side of the sexual
harassment suit. If Ms. Lewinsky abandoned their ``cover
stories,'' the lies they used to keep the affair a secret, the
President would have been vulnerable in legal and political
respects, as will be discussed below.
---------------------------------------------------------------------------
\50\ Id. at 16.
\51\ Id.
---------------------------------------------------------------------------
C. Fraud upon the court
The evidence shows that in mid-January Ms. Lewinsky
submitted a false affidavit in the Jones v. Clinton case in
accordance with the ``cover stories'' she and the President
discussed.52 The President requested to see the
affidavit before appearing for his deposition on January 17 and
even stated during the deposition that he was ``fully
familiar'' with the contents of Ms. Lewinsky's
affidavit.53 The evidence presented shows that the
President allowed his attorney to attest to the truthfulness of
Ms. Lewinsky's affidavit, and thus inform the court that
``there [was] absolutely no sex of any kind in any manner,
shape, or form'' between the President and Ms. Lewinsky when he
knew such information to be false. Such silence is a fraud upon
the court. Further, the President was untruthful in the
deposition when he testified that Ms. Lewinsky's affidavit was
``absolutely true.'' 54 Thus, the evidence shows
that the President engaged in a pattern of behavior designed to
deceive the court in the Jones v. Clinton case through his own
deception and that of Ms. Lewinsky.55
---------------------------------------------------------------------------
\52\ Id. at 17.
\53\ Id.
\54\ OIC referral at 15. ``The President made false statements not
only about his intimate relationship with Ms. Lewinsky, but about a
whole host of matters. The President testified that he did not know
that Vernon Jordan had met with Ms. Lewinsky and talked about the Jones
v. Clinton case. That was untrue. He testified that he could not recall
being alone with Ms. Lewinsky. That was untrue. He testified that he
could not recall ever being in the Oval Office hallway with Ms.
Lewinsky except perhaps when she was delivering pizza. That was untrue.
He testified that he could not recall gifts exchanged between Ms.
Lewinsky and him. That was untrue. He testified--after a 14 second
pause--that he was ``not sure'' whether he had ever talked to Ms.
Lewinsky about the possibility that she might be asked to testify in
the lawsuit. That was untrue. The President testified that he did not
know whether Ms. Lewinsky had been served a subpoena at the time he
last saw her in December 1997. That was untrue. When his attorney read
Ms. Lewinsky's affidavit denying a sexual relationship, the President
stated that the affidavit was ``absolutely true.'' That was untrue.''
Id. at 18-19.
\55\ Id. at 19.
---------------------------------------------------------------------------
The facts also show that the President attempted to coach
Ms. Currie after his deposition.56 In regard to his
relationship with Ms. Lewinsky the President stated to Ms.
Currie: ``you were always there when she was there, right? ``We
were never really alone,'' ``you could see and hear
everything,'' and ``She wanted to have sex with me and I
couldn't do that.'' 57 Ms. Currie testified that he
reiterated these instructions again on either January 20 or
21.58
---------------------------------------------------------------------------
\56\ Id. at 20.
\57\ Id.
\58\ Id. at 21.
---------------------------------------------------------------------------
D. Damage control
After the relationship involving Ms. Lewinsky became public
on January 21, 1998, the President's former media consultant,
Dick Morris, called the President to show his
empathy.59 Mr. Morris suggested the President
confess.60 ``The President replied, `But what about
the legal thing? You know the legal thing? You know, Starr and
perjury and all' . . . Mr. Morris [suggested he conduct a poll
and he] called [the President] with the results [of the poll].
He stated that the American people were willing to forgive
adultery but not perjury or obstruction of justice. The
President replied, `Well, we just have to win, then.' ''
61
---------------------------------------------------------------------------
\59\ Id. at 22. Mr. Morris then conducted a poll to gauge public
opinion. Questions in the poll included the following: ``13. If
President Clinton did lie and encouraged Monica to lie, do you think he
should be removed from office? [the numbers ``48-41'' were written
below the question] 14. If President Clinton lied, he committed the
crime of perjury. If he encouraged Monica to lie, he committed the
crime of obstruction of justice. In view of these facts, do you think
President Clinton should be removed from office? [the numbers ``60-30''
were written below the question]'' OIC Referral, part 2, H. Doc. 106-
316, at 2956 (1998)[hereinafter H. Doc. 106-316].
\60\ Statement of Independent Counsel Kenneth W. Starr Before the
House Judiciary Committee, 105th Cong., 2nd Sess. 21 (1998).
\61\ Id.
---------------------------------------------------------------------------
The President then engaged in a full scale attack on truth
and honesty. On January 26, 1998, the President wagged his
finger at the American people and denied a sexual relationship
with ``that woman, Ms. Lewinsky.'' He promised to cooperate
with the investigation, yet he refused six requests to testify
before the grand jury over a period of six months. He lied to
his aides about the nature of his relationship with Ms.
Lewinsky. Some of these aides then testified before the grand
jury and unwittingly perpetuated these falsehoods. They also
repeated the falsehoods in the public, the press and to some
Members of Congress, who in turn began to characterize her as
``a stalker,'' a ``poor child . . . with serious emotional
problems,'' and ``she's fantasizing. And I haven't heard she
played with a full deck in other experiences,'' and other
similar comments.62 Chief Investigative Counsel
David Schippers accused the White House of employing ``the full
power and credibility of the White House and the press corps to
destroy'' Ms. Lewinsky. This tactic was also used to attack the
credibility of Paula Jones, the plaintiff in Jones v. Clinton.
These actions by the President demonstrate a clear intent to
mislead and impede the pursuit of the truth.63 It is
worth noting that sources within the White House stopped these
vicious rumors when there rumors that Ms. Lewinsky saved her
blue dress stained with semen.
---------------------------------------------------------------------------
\62\ Rep. Charles Rangel, Democrat of New York.
\63\ Id. at 23.
---------------------------------------------------------------------------
E. Grand jury testimony on August 17, 1998 64
---------------------------------------------------------------------------
\64\ It is important to note that the Independent Counsel received
permission from the United States Court of Appeals for the District of
Columbia Circuit to disclose grand jury materials in accordance with
its duty to report to Congress under 28 U.S.C. Sec. 595(c). OIC
Referral 5 n.18. Generally, disclosure of grand jury testimony is
prohibited under Rule 6(e) of the Federal Rules of Criminal Procedure.
See Fed. R. Crim. P. 6 (e).
---------------------------------------------------------------------------
Finally, when the President appeared before the federal
criminal grand jury on August 17, 1998,65 he
testified that he did not lie in his civil
deposition.66 He also ``denied any conduct that
would establish that he had lied under oath at his civil
deposition. The President thus denied certain conduct with Ms.
Lewinsky and devised a variety of tortured and false
definitions.'' 67
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\65\ The President was admonished by members of the Senate as to
the absolute requirement that the President answer the questions put to
him truthfully. Senator Hatch stated: ``So help me, if he lies before
the grand jury, that will be grounds for impeachment.'' Id. at 28.
Similarly, Senator Moynihan stated that perjury before a grand jury is
an impeachable offense. Id.
\66\ Id.
\67\ Id. Members on the Judiciary Committee have stated that the
President was dishonest before the Grand Jury. Id. Senator-elect
Schumer stated, ``it is clear that the President lied when he testified
before the grand jury.'' Id. Congressman Meehan stated that the
President ``engaged in a dangerous game of verbal Twister.'' Id.
---------------------------------------------------------------------------
Thus, over the eight-month period at issue, evidence has
been presented that the President: made false statements under
oath in a civil deposition, made false statements before a
criminal grand jury, made false statements to his Cabinet and
other professional staff, tampered with witnesses, obstructed
justice by tampering with items under subpoena, and attempted
to hide under a veil of Presidential authority to conceal the
relationship and protect himself from
investigation.68
---------------------------------------------------------------------------
\68\ Id. at 29.
---------------------------------------------------------------------------
F. The allegations are supported by evidence
Physical evidence establishes the relationship between the
President and Ms. Lewinsky. DNA tests conducted on semen stains
from Ms. Lewinsky's clothing indicate that the President was
the source of the semen.69 The tests demonstrated
that the ``genetic markers on the semen, which match the
President's DNA, are characteristic of one out of 7.87 trillion
Caucasians.70
---------------------------------------------------------------------------
\69\ OIC Referral at 11.
\70\ Id. at 12.
---------------------------------------------------------------------------
The allegations are also supported by extensive de-briefing
of Ms. Lewinsky.71 An initial interview was
conducted with Ms. Lewinsky on July 27, 1998, to evaluate her
credibility.72 She was further interviewed over
fifteen days, and provided testimony under oath on three
occasions.73 The OIC Referral states that: ``[i]n
the evaluation of experienced prosecutors and investigators,
Ms. Lewinsky has provided truthful information. She has not
falsely inculpated the President. Harming him, she has
testified, is ``the last thing in the world I want to do.' ''
74
---------------------------------------------------------------------------
\71\ Id.
\72\ Id.
\73\ Id.
\74\ Id. It is important to note that Ms. Lewinsky engaged in a
cooperation agreement that includes safeguards to ensure that she tells
the truth. Id. Under the cooperation agreement her immunity could be
removed altogether by a federal district judge if it is found by a
preponderance of the evidence that she lied. The ``preponderance''
standard, in basic terms, is comparable to a ``more likely than not''
standard and is not as difficult to prove as the ``beyond a reasonable
doubt'' standard. Thus, if a federal judge finds that she lied, she
could be punished to the fullest extent of the law.
---------------------------------------------------------------------------
Testimony and information from numerous confidants of Ms.
Lewinsky also provided information to the Independent
Counsel.75 Approximately eleven individuals received
contemporaneous information from Ms. Lewinsky about her
involvement with the President.76 These individuals
were questioned. Many of them provided testimony under oath
before a federal grand jury.77 Documents also lend
support to Ms. Lewinsky's account.78
---------------------------------------------------------------------------
\75\ Id. at 13.
\76\ Id.
\77\ Id.
\78\ Id. at 14.
---------------------------------------------------------------------------
V. Violations of Law
This constitutional inquiry is not about sex or private
conduct. This inquiry is about enforcing the law and
demonstrating that: multiple obstructions of justice, multiple
instances of perjury, the practice of engaging in false and
misleading statements to the court, and witness tampering are
attacks on the integrity of our system of justice.
As stated by Mr. Schippers, Chief Investigative Counsel,
before the Judiciary Committee on December 10, 1998, ``the real
issues are whether the President of the United States testified
falsely under oath; whether he engaged in a continuing plot to
obstruct justice, to hide evidence, to tamper with witnesses
and to abuse the power of his office in furtherance of that
plot. The ultimate issue is whether the President's course of
conduct is such as to affect adversely the Office of the
Presidency by bringing scandal and disrespect upon it and also
upon the administration of justice, and whether he has acted in
a manner contrary to his trust as President and subversive to
the Rule of Law and Constitutional government.''
A. Perjury
1. Grand Jury Perjury--18 U.S.C. Sec. 1623
The grand jury process is an integral part of our criminal
justice system. The Fifth Amendment assures that grand jury
proceedings are a prerequisite to federal criminal charges and
prosecution; ``no person shall be held to answer for a capital,
or otherwise infamous crime, unless on a presentment or
indictment of a grand jury.'' The grand jury engages in a truth
finding mission.
Grand juries have the power to direct an investigation, and
therefore counteract ``suspicions of corruption and
partisanship in criminal law enforcement.'' 79 The
importance of the grand jury function is underscored by the
fact that perjury in grand jury and court proceedings is
discussed separately than perjury in general.80 The
Supreme Court has noted the gravity of perjury:
---------------------------------------------------------------------------
\79\ Wayne R. LaFave & Jerold H. Israel, Criminal Procedure
Sec. 8.6 (2d. ed. 1992).
\80\ See 18 U.S.C. Sec. 1623; cf 18 U.S.C. Sec. 1621.
In this constitutional process of securing a witness'
testimony, perjury simply has no place whatever.
Perjured testimony is an obvious and flagrant affront
to the basic concepts of judicial proceedings.
Effective restraints against the type of egregious
offense are therefore imperative. The power of
subpoena, broad as it is, and the power of contempt for
refusing to answer, drastic as that is--and the
solemnity of the oath--cannot insure truthful answers.
Hence Congress has made the giving of false answers a
criminal act punishable by severe penalties; in no
other way can criminal conduct be flushed into the open
where the law can deal with it.
Similarly, our cases have consistently--indeed
without exception--allowed sanction for false statement
or perjury; they have done so even in instances where
the perjurer complained that the Government exceeded
its constitutional powers in making the
inquiry.81
---------------------------------------------------------------------------
\81\ United States v. Mandujano, 425 U.S. 564, 576-
77(1976)(plurality opinion)(footnote and citations omitted).
---------------------------------------------------------------------------
2. Perjury In General--18 U.S.C. Sec. 1621
Perjury consists of providing false testimony as to
material facts while under oath: ``The essential elements of
the crime of perjury as defined in 18 U.S.C. Sec. 1621 . . .
are (1) an oath authorized by a law of the United States, (2)
taken before a competent tribunal, officer, or person, and (3)
a false statement willfully made as to facts material to the
hearing.'' 82 Materiality is based on the
circumstances and context in which the statement was
made.83 There are no exceptions to perjury for
sexual matters.
---------------------------------------------------------------------------
\82\ United States v. Hvass, 355 U.S. 570, 574 (1958)(internal
quotation marks omitted); see also 18 U.S.C. Sec. 1621. Section 1621
carries a penalty of fines or imprisonment for up to five years.
\83\ See, e.g., United States v. Holley, 942 F.2d 916, 923 (5th
Cir. 1991)(``the government must prove that Holley's statements were,
at the time made, material to the proceeding in which his deposition
was taken.'' (emphasis added.)); United States v. Martinez, 855 F.2d
621, 624 (9th Cir. 1988)(``The proper test is to judge materiality in
terms of its potential for obstructing justice at the time the
statement is made . . ..'' (emphasis added)); United States v. Percell,
526 F.2d 189, 190 (9th Cir. 1975).
---------------------------------------------------------------------------
Some have argued that perjury is less important in civil
cases and is rarely prosecuted. Such assertions are
misguided.84 As stated by the United States Court of
Appeals for the 11th Circuit, ``we categorically reject any
suggestion, implicit or otherwise, that perjury is somehow less
serious when made in a civil proceeding. Perjury, regardless of
the setting, is a serious offense that results in incalculable
harm to the functioning and integrity of the legal system as
well as to private individuals.'' 85 In fact, this
year the Justice Department prosecuted a woman for perjury
pertaining to a sexual relationship.86 The woman,
Ms. Battalino, testified before the Judiciary Committee. She
was sentenced to one year home detention and fined $3500 in
court costs.87
---------------------------------------------------------------------------
\84\ See, e.g., United States v. Wilkinson, 137 F.3d 214 (4th Cir.
1998)(perjury in civil deposition); United States v. Kersey, 130 F.3d
1463 (11th Cir. 1997)(perjury in civil deposition and affidavit);
United States v. Sassanelli, 118 F.3d 495 (6th Cir. 1997)(perjury in
civil affidavit); Virgin Islands v. Davis, 43 F.3d 41 (3rd Cir. 1994),
cert. denied, 515 U.S. 1123 (1995)(perjury in civil case); United
States v. Thompson, 29 F.3d 62 (2d Cir. 1994)(perjury in bankruptcy
proceeding); United States v. Chaplin, 25 F.3d 1373 (7th Cir.
1994)(perjury in bankruptcy deposition); United States v. Nebel, 16
F.3d 1222, 1994 WL 12647 (6th Cir. 1994)(unpublished)(perjury in civil
deposition); United States v. Kross, 14 F.3d 751 (2d Cir.), cert.
denied, 513 U.S. 828 (1994)(perjury in civil deposition); United States
v. Markiewicz, 978 F.2d 786 (2d cir. 1992), cert. denied, 506 U.S. 1086
(1993)(perjury in civil deposition); United States v. Clark, 918 F.2d
843 (9th Cir. 1990)(perjury in civil deposition); United States v. Cox,
859 F.2d 151 (4th Cir. 1988), cert. denied, 488 U.S. 1044
(1989)(unpublished)(perjury in civil trial); United States v. Holley,
942 F.2d 916 (5th Cir. 1991)(perjury in civil deposition).
\85\ United States v. Holland, 22 F.3d 1040, 1047-48 (11th Cir.
1994), cert. denied, 513 U.S. 1109 (1995)(emphasis added); see also
United States v. McAfee, 8 F.3d 1010, 1013-14 (5th Cir. 1993)(rejecting
the argument that the perjury statute does not apply to civil
depositions ``[t]here is no real substantive difference between federal
civil and federal criminal proceedings [in regard to perjury].'').
\86\ United States v. Battalino, Case No. CR-98-038-S-EJL (D.
Idaho); see also David Tell, Bill Clinton: This Precedent's For You,
The Weekly Standard, June 22, 1998, at 9.
\87\ David Tell, Contagious Corruption, The Weekly Standard, August
3, 1998, at 9.
---------------------------------------------------------------------------
B. THE ARTICLES OF IMPEACHMENT
(1) Article I--Grand Jury Perjury
In his conduct while President of the United States,
William Jefferson Clinton, in violation of his constitutional
oath faithfully to execute the office of President of the
United States and, to the best of his ability, preserve,
protect, and defend the Constitution of the United States, and
in violation of his constitutional duty to take care that the
laws be faithfully executed, has willfully corrupted and
manipulated the judicial process of the United States for his
personal gain and exoneration, impeding the administration of
justice, in that:
On August 17, 1998, William Jefferson Clinton swore to tell
the truth, the whole truth, and nothing but the truth before a
Federal grand jury of the United States. Contrary to that oath,
William Jefferson Clinton willfully provided perjurious, false
and misleading testimony to the grand jury concerning one or
more of the following: (1) the nature and details of his
relationship with a subordinate Government employee; (2) prior
perjurious, false and misleading testimony he gave in a Federal
civil rights action brought against him; (3) prior false and
misleading statements he allowed his attorney to make to a
Federal judge in that civil rights action; and (4) his corrupt
efforts to influence the testimony of witnesses and to impede
the discovery of evidence in that civil rights action.
In doing this, William Jefferson Clinton has undermined the
integrity of his office, has brought disrepute on the
Presidency, has betrayed his trust as President, and has acted
in a manner subversive of the rule of law and justice, to the
manifest injury of the people of the United States.
Wherefore, William Jefferson Clinton, by such conduct,
warrants impeachment and trial, and removal from office and
disqualification to hold and enjoy any office of honor, trust,
or profit under the United States.
Article I passed the Judiciary Committee by a vote of 21 to
16 on December 11, 1998. I voted in support of its passage.
In the drafting of the Articles of Impeachment, I
successfully convinced my colleagues to separate the perjurious
conduct of the President into two separate articles, making
Article I pertain to grand jury perjury, while making all other
perjurious statements into a separate article, Article II. The
grand jury system, which common law refers to as the
``peoples'' panel'' to serve as the community's watchdog, has
screening and investigative functions to develop evidence in
search of the sometimes painful truth with unbridled candor.
Throughout legal history, defense lawyers have been critics,
often attacking the prosecutor and the process, wherein a grand
jury's broad investigative power and independence are linked
with criminal procedure, by calling it an ``inquisitorial
element.''
``The Supreme Court has described the grand jury's
authority to compel testimony as `[a]mong the necessary and
most important of the powers . . . [that] assure the effective
functioning of government in an ordered society.' ''
88 For this reason, it is proper that the first
Article of Impeachment cite grand jury perjury.
---------------------------------------------------------------------------
\88\ Wayne R. LaFave & Jerold H. Israel, criminal procedure
Sec. 8.6 (2d. ed. 1992)(citation omitted).
---------------------------------------------------------------------------
The specific allegations contained in the first article are
that the President provided perjurious, false and misleading
testimony to the grand jury on August 17, 1998, regarding: the
nature and details of his relationship with Ms. Lewinsky; prior
perjurious, false and misleading testimony he gave in a Federal
civil rights action brought against him; prior false and
misleading statements he allowed his attorney to make to a
Federal judge in that civil rights action; and his corrupt
efforts to influence the testimony of witnesses and to impede
the discovery of evidence in that civil rights
action.89
---------------------------------------------------------------------------
\89\ H. Res. ------, 105th Cong., 2nd Sess. (1998).
---------------------------------------------------------------------------
a. The President Willfully Provided Perjurious, False and
Misleading Testimony To The Grand Jury Concerning
the Nature and Details of The Relationship With A
Subordinate Government Employee.
The evidence presented demonstrates that President Clinton
committed perjury before the grand jury on August 17, 1998. The
President gave false and misleading testimony before the grand
jury regarding his conduct with a subordinate federal employee
who was a witness in the federal civil rights action brought
against him. A key inquiry, which could demonstrate perjury in
the civil deposition and in responses to interrogatories from
the OIC, was whether the President had a sexual relationship
with Ms. Lewinsky as defined in Jones v. Clinton.
The President lied before the grand jury three times.
First, the President stated that oral sex was not included in
the definition of sexual relations employed in the Jones v.
Clinton deposition.90 It is an incredible torture of
words for the President to assert that oral sex would not fall
under ``sexual relationship,'' ``sexual relations,'' or a
``sexual affair.'' The President interpreted the definition of
sexual relations to mean that one who is receiving a sexual
favor, or engaged in activity short of sexual intercourse, is
not involved in sexual relations.
---------------------------------------------------------------------------
\90\ Oic Referral at 148.
---------------------------------------------------------------------------
Second, even if the definition of sexual relations as it
was understood by the President is employed, the President
engaged in sexual relations with Ms. Lewinsky. The thrust of
the President's understanding of the definition of the sex is
that if the witness was the person who was touched, rather than
provided the touching, then the conduct does not fall under the
definition of sexual relations. Substantial and credible
evidence shows that on numerous occasions the President did in
fact touch Ms. Lewinsky as defined by the court in Jones v.
Clinton. In fact, Ms. Lewinsky testified under oath that she
had ten sexual encounters with the President, while several of
Ms. Lewinsky's friends, family members and counselors testified
that she had informed them of a sexual relationship during the
pertinent time period. Another item of evidence includes the
DNA test. Yet, before the grand jury, the President lied by
stating he did not engage in sexual relations with Ms.
Lewinsky.
Third, the President made a false statement as to when his
relationship with Ms. Lewinsky began.91 Before the
grand jury the President testified that the relationship did
not begin until 1996, when Ms. Lewinsky was a White House
employee.92 However, corroborated evidence shows
that the affair began during the government shut-down of
November, 1995, when she was only a 22 year old
intern.93 According to Ms. Lewinsky's testimony,
after first sexual encounter the President tugged on her intern
badge and stated that her status as an intern could be a
problem.94
---------------------------------------------------------------------------
\91\ Id. at 149.
\92\ Id.
\93\ Id.
\94\ Id. at 150.
---------------------------------------------------------------------------
Facing such dire circumstances, the President decided to
evade the truth before the grand jury. He admitted to an
``inappropriate intimate relationship'' with Lewinsky but
denied that he lied in the Jones v. Clinton deposition when he
said he did not have sexual relations with Ms.
Lewinsky.95 The President did not want to admit that
he had oral sex with a 22 year-old White House intern.
---------------------------------------------------------------------------
\95\ OIC Referral at 146-50.
---------------------------------------------------------------------------
The extensive details of the sexual contacts between the
President and Ms. Lewinsky was important to this investigation,
because it is only through an examination of precisely what sex
acts occurred that one can determine whether the President
lied. Based on the detailed information provided by Ms.
Lewinsky, as well as physical evidence such as DNA evidence, it
is clear the President and Ms. Lewinsky engaged in sexual
relations under the definition used in the Jones v. Clinton
case.
During the grand jury inquiry, ``the President was asked
whether Ms. Lewinsky performed oral sex on him, and if so,
whether he committed perjury by denying a sexual relationship,
sexual affair, or sexual relations with her. The President
refused to say whether he had oral sex. Instead, the President
said (i) that the undefined terms ``sexual affair,'' ``sexual
relationship,'' and ``sexual relations'' necessarily require
sexual intercourse, (ii) that he had not engaged in intercourse
with Ms. Lewinsky, and (iii) that he therefore had not
committed perjury in denying a sexual relationship, sexual
affair, or sexual relations.'' 96
---------------------------------------------------------------------------
\96\ Id. at 146.
---------------------------------------------------------------------------
The President's defense relies on a twisted, and hair-
splitting interpretation of sexual relations. Such a contrived
interpretation of the statute flies in the face of testimony
which provides ``the truth, the whole truth, and nothing but
the truth.''
If the President admitted a sexual relationship with Ms.
Lewinsky before the grand jury, he would have revealed that he
lied in the prior proceeding and in his responses to
interrogatories. Such concessions would have made him
vulnerable as a defendant in the civil rights lawsuit filed by
Paula Jones, whose appeal was pending, and would have
jeopardized his family structure, and would have caused
enormous embarrassment to his family and personal integrity.
Thus, in context, the President had motive to lie. In fact,
before the Judiciary Committee the White House counsel Mr.
Craig stated: ``the President's testimony was evasive,
incomplete, misleading, and even maddening.'' Those facts in
evidence, coupled with the President's demeanor and motive to
lie, comprise compelling evidence as to his state of mind that
he willfully gave false testimony to the grand jury.
b. The President Willfully Provided Perjurious, False and
Misleading Testimony to the Grand Jury Regarding
Prior Perjurious, False and Misleading Testimony
Provided in A Federal Civil Rights Action Brought
Against Him
The President made a false and misleading statement before
the grand jury when he asserted that the testimony he gave in
his deposition taken as a part of the civil rights action
brought against him in Jones v. Clinton was truthful.
Throughout his grand jury testimony, the President
acknowledged his oath and recognized that he was bound to tell
the truth during the January 17, 1998, deposition in the Jones
v. Clinton case, as well as his testimony before the grand jury
on August 17, 1998. The record reflects that he lied.
In contrast to his assertions to testify truthfully when
deposed on January 17, 1998, and before the grand jury on
August 17, 1998, the record reflects that the President lied,
thereby committing grand jury perjury.
c. The President Willfully Provided Perjurious, False and
Misleading Testimony to the Grand Jury Regarding
Prior False And Misleading Statements He Allowed
His Attorney To Make To A Federal Judge In That
Civil Rights Action Brought Against Him
Ms. Lewinsky's affidavit stated that she and the President
had no sexual relations at any time. The evidence shows that
the President was aware of Ms. Lewinsky's affidavit. Ms.
Lewinsky's attorney, Mr. Frank Carter, worked closely with the
President's attorney, Mr. Bennett, to ensure the affidavit was
filed with the court prior to the civil
deposition.97 The President allowed his attorney to
represent to a federal judge that Ms. Lewinsky's affidavit was
true and accurate. Thus, the President sat back and allowed his
attorney to report facts to the court which he knew to be
false.
---------------------------------------------------------------------------
\97\ OIC Referral at 174.
---------------------------------------------------------------------------
The President argues that he was unaware of what his
attorney was doing at the time and therefore did not allow his
attorney to represent false information to the court. Yet, Mr.
Schippers presentation of the videotape of the deposition shows
that the President was closely following the actions and
arguments of his attorney. Furthermore it is incredulous to
assert that at the time the court was arguing whether to open
``Pandora's Box'' the President was unaware of his attorney's
actions. As stated, truthful information about his relationship
with Ms. Lewinsky was potentially disastrous to the President:
it would demonstrate he lied in interrogatories answered in
December; it would have made him vulnerable as a defendant in a
civil rights sexual harassment lawsuit; it would have greatly
embarrassed his family; and, it tarnish his political standing.
During the grand jury testimony the President was asked
about the deposition. The President argued that when his
attorney, Mr. Bennett, informed the court that there ``is no
sex of any kind . . . '' Mr. Bennett was speaking only in the
present tense. The President stated, ``It depends upon what the
meaning of ``is'' is, and that ``if it means there is none,
that was a completely true statement.'' \98\ President Clinton
is guilty of what C.S. Lewis called ``verbicide,'' murder of
the plain spoken word. His attempt to invoke the literal truth
defense fails under the reasonableness test.
---------------------------------------------------------------------------
\98\ OIC Referral, Part I at 476-77.
---------------------------------------------------------------------------
As stated in the OIC Referral regarding sworn testimony in
the affidavit and its use:
Monica Lewinsky testified that President Clinton called
her around 2:00 to 2:30 a.m. on December 17, 1997, and
told her that her name was on the Jones case witness
list. As noted in her February 1 handwritten statement:
`When asked what to do if she was subpoenaed, the Pres.
[sic] suggested she could sign an affidavit . . . ' Ms.
Lewinsky said she is `100% sure' that the President
suggested that she might want to sign an affidavit.
Ms. Lewinsky understood the President's advice to mean
that she might be able to execute an affidavit that
would not disclose the true nature of their
relationship. In order `to prevent me from being
deposed,' she said she would need an affidavit that
`could range from anywhere between maybe just somehow
mentioning, you know, innocuous things or going as far
as maybe having to deny any kind of relationship.'
Ms. Lewinsky stated that the President never explicitly
told her to lie. Instead, as she explained, they both
understood from their conversations that they would
continue their pattern of covering up and lying about
the relationship. In that regard, the President never
said they must now tell the truth under oath; to the
contrary, as Ms. Lewinsky stated: `[I]t wasn't as if
the President called me and said, `You know, Monica,
you're on the witness list, this is going to be really
hard for us, we're going to have to tell the truth and
be humiliated in front of the entire world about what
we've done,' which I would have fought him on probably.
That was different. And by him not calling me and
saying that, you know, I knew what that meant.'
Ms. Jones's lawyers served Ms. Lewinsky with a subpoena
on December 19, 1997. Ms. Lewinsky contacted Vernon
Jordan, who in turn put her in contact with attorney
Frank Carter. Based on the information that Ms.
Lewinsky provided, Mr. Carter prepared an affidavit
which stated: `I have never had a sexual relationship
with the President.'
After Mr. Carter drafted the affidavit, Ms. Lewinsky
spoke to the President by phone on January 5th. She
asked the President if he wanted to see the draft
affidavit. According to Ms. Lewinsky, the President
replied that he did not need to see it because he had
already `seen 15 others.'
Mr. Jordan confirmed that President Clinton knew that
Ms. Lewinsky planned to execute an affidavit denying a
sexual relationship. Mr. Jordan further testified that
he informed President Clinton when Ms. Lewinsky signed
the affidavit. Ms. Lewinsky's affidavit was sent to the
federal court in Arkansas on January 16, 1998--the day
before the President's deposition--as part of her
motion to quash the deposition subpoena.
Two days before the President's deposition, his lawyer,
Robert Bennett, obtained a copy of Ms. Lewinsky's
affidavit from Mr. Carter. At the President's
deposition, Ms. Jones's counsel asked questions about
the President's relationship with Ms. Lewinsky. Mr.
Bennett objected to the `innuendo' of the questions,
noting that Ms. Lewinsky had signed an affidavit
denying a sexual relationship, which according to Mr.
Bennett, indicated that `there is absolutely no sex of
any kind in any manner, shape or form.' Mr. Bennett
said that the President was `fully aware of Ms.
Lewinsky's affidavit.' Mr. Bennett affirmatively used
the affidavit in an effort to cut off questioning. The
President said nothing--even though, as he knew, the
affidavit was false. Judge Wright overruled the
objection and allowed the questioning to continue.
Later, Mr. Bennett read Ms. Lewinsky's affidavit
denying a `sexual relationship' to the President and
asked him: `Is that a true and accurate statement as
far as you know it?' The President answered, `That is
absolutely true.'\99\
---------------------------------------------------------------------------
\99\ OIC Referral at 173-75.
---------------------------------------------------------------------------
d. The President Willfully Provided Perjurious, False and
Misleading Testimony to the Grand Jury Regarding
His Corrupt Efforts To Influence The Testimony Of
Witnesses And To Impede The Discovery Of Evidence
In That Civil Rights Action
1. The President Gave False and Misleading Testimony Before
the Grand Jury When He Denied Engaging in a Plan to
Hide Evidence that had been Subpoenaed in the
Federal Civil Rights Action Against Him
Starting in November 1995, the President engaged in sexual
relations with Ms. Lewinsky. In order to keep the relationship
a secret, they devised ``cover stories.'' As discussed, on
December 5, 1997, Ms. Jones' attorneys identified Ms. Lewinsky
as a potential witness in the case, and the President learned
this fact within a day.\100\ The President then called Ms.
Lewinsky at 2:00 a.m. on the morning of December 17, 1997, and
informed her that she was a potential witness.\101\ According
to Ms. Lewinsky, the President suggested that she execute an
affidavit to avoid a deposition, and that they continue with
the usual ``cover stories'' to explain why she visited the oval
office on so many occasions.\102\ The ``cover stories'' were
lies. The President suggested to a potential witness in a
federal civil rights case to lie.
---------------------------------------------------------------------------
\100\Id.
\101\ Id. at 12.
\102\ Id.
---------------------------------------------------------------------------
As to the discovery of evidence in the Jones v. Clinton
case, according to the evidence presented by the OIC, Ms.
Lewinsky gave the President approximately 38 gifts. On December
28, 1997, the President and Ms. Lewinsky had a conversation
about the gifts they exchanged, Ms. Lewinsky said: `` `I
mentioned that I had been concerned about the hat pin being on
the subpoena and [the President] said that that had sort of
concerned him also and asked me if I had told anyone that he
had given me this hat pin and I said no.'' \103\ Ms. Currie
also testified to having had conversations with the President
about certain gifts.\104\
---------------------------------------------------------------------------
\103\ Id. at 156.
\104\ Id.
---------------------------------------------------------------------------
That day, the Sunday after Christmas, Ms. Currie went over
to Ms. Lewinsky's home and retrieved a box of gifts from her.
She took the gifts home and hid them under her bed.
It is unreasonable to believe that a young former White
House intern would have the clout to summon the secretary to
the President of the United States to her house on the Sunday
after Christmas in order to pick up personal gifts so that she
could hide them under her bed. Reasonable people do not
subscribe to the absurd. These gifts were all under subpoena in
the Jones v. Clinton case. The facts surrounding the retrieval
of the gifts lead a reasonable person to the conclusion that
Ms. Currie was instructed to do so by the President.
President Clinton testified before the grand jury, and
reiterated to the Judiciary Committee in Request for Admission
No. 26, that he did not recall any conversation with Ms. Currie
on or about December 28 1997, about gifts previously given to
Ms. Lewinsky and that he never told Ms. Currie to take
possession of the gifts he had given to Ms. Lewinsky.\105\ This
answer is false and misleading because the evidence reveals
that Betty Currie did place a call to Monica Lewinsky about the
gifts and there is no reason for her to do so unless instructed
by the President. Because she did not personally know of the
gift issue, there is no other way Ms. Currie could have known
to call Ms. Lewinsky about the gifts unless the President told
her to do so. The President had a motive to conceal the gifts
because both he and Ms. Lewinsky were concerned that the gifts
might raise questions about their relationship. By confirming
that the gifts would not be produced, the President ensured
that these questions would not arise. The concealment and non-
production of the gifts to the attorneys' for Paula Jones
allowed the President to provide false and misleading
statements about the gifts at his deposition in the case of
Jones v. Clinton. Additionally, Ms. Lewinsky's testimony on
this subject has been consistent and unequivocal; she provided
the same facts in February, July and August. Betty Currie's
cell phone records show that she placed a one minute call to
Monica Lewinsky on the afternoon of December 28th.
---------------------------------------------------------------------------
\105\ H. Doc. 105-311, at 502.
---------------------------------------------------------------------------
2. The President Made False and Misleading Statements
Before The Grand Jury Regarding His Knowledge That
The Contents of an Affidavit Executed by a
Subordinate Federal Employee Who was a Witness in
The Federal Civil Rights Action Brought Against Him
Were Untrue
Ms. Lewinsky filed an affidavit in the Jones v. Clinton
case, in which she denied ever having a sexual relationship
with the President. During his deposition in the case, the
President affirmed that the statement of Ms. Lewinsky in her
affidavit was ``absolutely true.'' Ms. Lewinsky testified that
she is ``100 percent sure'' that the President suggested that
she might want to sign an affidavit to avoid testifying in the
Jones v. Clinton case.
The President told the Judiciary Committee that he believed
he told Ms. Lewinsky ``other witnesses had executed affidavits,
and there was a chance they would not have to testify.'' \106\
Before the criminal grand jury in August, the President
testified that he hoped that Ms. Lewinsky could avoid being
deposed by filing an affidavit, but that he did not want her to
submit a false affidavit.\107\
---------------------------------------------------------------------------
\106\ Request for Admission No. 18.
\107\ H. Doc. 105-311, at 571.
---------------------------------------------------------------------------
Such testimony is false and misleading because it would
have been impossible for Ms. Lewinsky to file a truthful
affidavit without jeopardizing the President by being deposed.
Ms. Jones' attorneys were seeking information about other state
or federal employees with whom the President had sexual
relationships. Judge Susan Weber Wright ruled that Ms. Jones
was entitled to such discovery information. The President must
have been cognizant of such facts which renders his grand jury
testimony on these facts false and misleading. In his efforts
to be evasive, the President favored a feigned memory after
citing Betty Currie as a source for the answer, thus setting up
Ms. Currie as a potential witness.
While testifying before the grand jury, Ms. Currie was more
precise in her recollection of the two meetings. An OIC
attorney asked her if the President had made a series of
leading statements or questions that were similar to the
following:
1. ``You were always there when she [Monica Lewinsky] was
there, right? We were never really alone.''
2. ``You could see and hear everything.''
3. ``Monica came on to me, and I never touched her, right?'
4. ``She wanted to have sex with me and I couldn't do
that.'' 108
---------------------------------------------------------------------------
\108\ OIC Referral at 191-192.
---------------------------------------------------------------------------
Based on his demeanor and the manner in which he asked the
questions, she concluded that the President wanted her to agree
with him. Ms. Currie thought that the President was attempting
to gauge her reaction, and appeared concerned.109
Ms. Currie also acknowledged that while she indicated to the
President that she agreed with him, in fact she knew that, at
times, he was alone with Ms. Lewinsky and that she could not or
did not hear or see the two of them while they were alone.
---------------------------------------------------------------------------
\109\ Id.
---------------------------------------------------------------------------
3. The President Made False and Misleading Statements
Before the Grand Jury When He Recited a False
Account of the Facts Regarding His Interactions
with Monica Lewinsky to Betty Currie, a Potential
Witness in the Federal Civil Rights Action Brought
Against Him
The evidence shows that immediately after the President was
deposed in the Jones v. Clinton case he attempted to influence
the testimony of Ms. Betty Currie. Ms. Currie testified that
the President discussed Ms. Lewinsky with her, and that his
questions were actually statements with which he wanted her to
agree.110
---------------------------------------------------------------------------
\110\ H. Doc. 105-310, at 191-92.
---------------------------------------------------------------------------
Before the grand jury the President was vague and evasive
on these points. He stated that he talked to Ms. Currie right
after his deposition, but that he talked to her in an effort to
learn as much about the matter as he could.111 He
further stated that he instructed Ms. Currie to ``tell the
truth'' after learning she could have been called to
testify.112 The President also testified that he
could not remember how many times he talked to Ms. Currie,
however Ms. Currie testified to two such discussions.
---------------------------------------------------------------------------
\111\ See Request for Admission No. 52.
\112\ H. Doc. 105-311, at 591.
---------------------------------------------------------------------------
(2) Article II--Other Perjurious Testimony
In his conduct while President of the United States,
William Jefferson Clinton, in violation of his constitutional
oath faithfully to execute the office of President of the
United States and, to the best of his ability, preserve,
protect, and defend the Constitution of the United States, and
in violation of his constitutional duty to take care that the
laws be faithfully executed, has willfully corrupted and
manipulated the judicial process of the United States for his
personal gain and exoneration, impeding the administration of
justice, in that:
(1) On December 23, 1997, William Jefferson Clinton,
in sworn answers to written questions asked as part of
a Federal civil rights action brought against him,
willfully provided perjurious, false and misleading
testimony in response to questions deemed relevant by a
Federal judge concerning conduct and proposed conduct
with subordinate employees.
(2) On January 17, 1998, William Jefferson Clinton
swore under oath to tell the truth, the whole truth,
and nothing but the truth in a deposition given as part
of a Federal civil right action brought against him.
Contrary to that oath, William Jefferson Clinton
willfully provided perjurious, false and misleading
testimony in response to questions deemed relevant by a
Federal judge concerning the nature and details of his
relationship with a subordinate Government employee,
his knowledge of that employee's involvement and
participation in the civil rights action brought
against him, and his corrupt efforts to influence the
testimony of that employee.
In all of this, William Jefferson Clinton has
undermined the integrity of his office, has brought
disrepute on the Presidency, has betrayed his trust as
President, and has acted in a manner subversive to the
rule of law and justice, to the manifest injury of the
people of the United States.
Wherefore, William Jefferson Clinton, by such
conduct, warrants impeachment and trial, and removal
from office and disqualification to hold and enjoy any
office of honor, trust, or profit under the United
States.
Article II passed the Judiciary Committee by a vote of 20
to 17 on December 11, 1998. I voted in support of its passage.
The specific allegations contained in Article II are that
the President willfully provided perjurious, false and
misleading testimony in answers to written questions posed by
the plaintiff in Jones v. Clinton on December 23, 1997, and
that the President willfully provided perjurious, false and
misleading testimony in answers to questions proposed by the
plaintiff's attorney in a deposition on January 17, 1998.
a. On December 23, 1997, the President, in Sworn Answers to
Written Questions Asked As Part of A Federal Civil
Rights Action Brought Against Him, Willfully
Provided Perjurious, False and Misleading Testimony
In Response To Questions Deemed Relevant By A
Federal Judge Concerning Conduct And Proposed
Conduct With Subordinate Employees.
As stated previously, on December 23, 1997, the President
answered interrogatories in the Jones case under
oath.113 When asked under oath to identify women
with whom he had sexual relations who were state or federal
employees during a specified limited time frame, the President
responded ``none.'' 114 The President lied.
---------------------------------------------------------------------------
\113\ OIC Referral. at 13.
\114\ V002-DC-00000053 (President Clinton's Supplemental Responses
to Plaintiff's Second Set of Interrogatories at 2).
---------------------------------------------------------------------------
b. On January 17, 1998, the President Swore Under Oath To
Tell The Truth, The Whole Truth, And Nothing But
The Truth In a Deposition Given As Part of A
Federal Civil Rights Action Brought Against Him.
Contrary To That Oath, the President Willfully
Provided Perjurious, False and Misleading Testimony
In Response To Questions Deemed Relevant By a
Federal Judge Concerning The Nature and Details Of
His Relationship With A Subordinate Government
Employee And His Corrupt Efforts To Influence The
Testimony Of That Employee.
On January 17, 1998, the President was questioned under
oath at a deposition regarding sexual relationships with women
in the workplace.115 During the deposition, the
President denied that he had engaged in a ``sexual affair,'' a
``sexual relationship,'' or ``sexual relations'' with Ms.
Lewinsky, while also stating that he ``had no specific memory
of being alone with Ms. Lewinsky, that he remembered few
details of any gifts they might have exchanged, and indicated
that no one except his attorneys had kept him informed of Ms.
Lewinsky's status as a potential witness in the [Jones v.
Clinton] case.'' 116 Under oath the President stated
that he had not had sexual relations with any federal employees
during a particular time frame.117 As we now know,
in fact the President did have sexual relations with a federal
employee during the stated time frame. The President lied.
---------------------------------------------------------------------------
\115\ OIC Referral at 3.
\116\ Id. at 3.
\117\ Id.
---------------------------------------------------------------------------
According to Ms. Lewinsky, she and the President had ten
sexual encounters, eight while she was a White House intern or
employee, and two thereafter. The sexual encounters generally
occurred in or near the Oval Office private study. The evidence
indicates that the conduct the President had with Ms. Lewinsky
met the definition of sex, and that he lied about their
conduct. Ms. Lewinsky testified that her physical relationship
with the President included oral sex but not sexual
intercourse.
c. The President Lied in His Deposition About Being Alone
in Certain Locations of the White House with A
Subordinate Federal Employee Who Was a Witness In
The Action Brought Against Him
The evidence is clear that Ms. Lewinsky and the President
did have sexual relations when they were ``alone.'' There is no
evidence that anyone saw them, or that they were caught in a
sex act, which would lead reasonable minds to believe that
their relationship was always covert. They were in fact alone.
The President's attempt to defend himself on this charge is a
tortured definition of the word ``alone,'' wherein it refers to
an entire geographical area, rather than the immediate
surroundings. When the President said he was never alone with
Ms. Lewinsky, he meant he was never alone in the White House
oval office complex. In fact, the President and Ms. Lewinsky
were alone on at least 21 occasions. Naturally, in the literal
sense, one is never alone in the cosmos. Reasonable people do
not believe the absurd. Reasonable people would believe that
the President's testimony was perjurious.
The President relies on the literal truth defense. He
asserts that he is never really alone in the White House. There
must be a objective reasonable basis for a subjective belief to
have merit. The President's subjective belief is neither
reasonable nor sufficient to shield him from perjury charges.
There was no reasonable basis. The evidence supports that the
President lied.
d. The President Lied In His Deposition About His Knowledge
of Gifts Exchanged Between Himself and a
Subordinate Federal Employee Who Was A Witness in
the Action Brought Against Him
The evidence shows that the President presented Ms.
Lewinsky with a number of gifts, including, a lithograph, a hat
pin, a large ``Black Dog'' canvas bag, a large ``Rockettes''
blanket, a pin of the New York City skyline, a box of
chocolates, a pair of sunglasses, a stuffed animal from the
``Black Dog,'' a marble bear's head, a London pin., a shamrock
pin, an Annie Lennox compact disc, and Davidoff cigars.\118\ In
the deposition of the President he provided false answers when
he testified that Ms. Lewinsky has given him ``a book or two.''
The evidence also shows that Ms. Lewinsky gave the President
approximately 38 gifts.\119\ The President gave Ms. Lewinsky
approximately 24 gifts. The evidence supports that the
President lied.
---------------------------------------------------------------------------
\118\ OIC Referral at 101.
\119\ Id. at 157.
---------------------------------------------------------------------------
e. The President Lied In His Deposition About His Knowledge
Regarding Whether He Had Ever Spoken To A
Subordinate Federal Employee About The Possibility
That Such Subordinate Employee Might Be Called As A
Witness To Testify In The Federal Civil Rights
Action Brought Against Him
When asked in the deposition about whether he talked to Ms.
Lewinsky about her being called as a witness the President
testified that he could not recall. However, the evidence shows
that on December 17, 1997, the President called Ms. Lewinsky
and informed her that he had seen the witness list and that her
name was on it.\120\ Moreover, he told her that if she was
called as a witness she was to notify Ms. Currie.\121\ The
evidence supports that the President lied.
---------------------------------------------------------------------------
\120\ Id. at 843.
\121\ Id..
---------------------------------------------------------------------------
f. The President lied in his deposition about his knowledge
of the service of a subpoena to a subordinate
federal employee to testify as a witness in the
federal civil rights action brought against him
In the civil deposition, the President was asked the
question:
Q. Did she tell you she had been served with a
subpoena in this case?
A. No. I don't know if she had been.
Q. Did anyone other than your attorneys tell you that
Monica Lewinsky had been served with a subpoena in this
case?
A. I don't think so.'' \122\
---------------------------------------------------------------------------
\122\ Deposition of President Clinton in the case of Jones v.
Clinton, January 18, 1998, p. 068.
The evidence shows that the President discussed with Vernon
Jordan the fact that Ms. Lewinsky was served with a subpoena.
The testimony of the President and Vernon Jordan is in direct
conflict on this fact.\123\ The record indicates that the
President knew, before his deposition, that Ms. Lewinsky had
been subpoenaed in the case of Jones v. Clinton.\124\ Ms.
Lewinsky was served with a subpoena on December 19, 1997, a
subpoena that commanded her to appear for a deposition on
January 23, 1998, and to produce certain documents and
gifts.\125\ Monica Lewinsky talked to Vernon Jordan about the
subpoena on December 19, 1997, and Mr. Jordan spoke to the
President that afternoon and again that evening.\126\ He told
the President that he had met with Ms. Lewinsky, she had been
subpoenaed, and that he planned on obtaining an attorney for
her.\127\ On Sunday, December 28, 1997, the President met with
Ms. Lewinsky who expressed concerns about the subpoena's demand
for gifts he had given her.\128\ The evidence supports that the
President lied.
---------------------------------------------------------------------------
\123\ OIC Referral at 96.
\124\ Id. at 97.
\125\ Id. at 96.
\126\ Id. at 96-97.
\127\ Id. at 97.
\128\ Id.
---------------------------------------------------------------------------
g. The President Lied In His Deposition About His Knowledge
Of The Final Conversation He Had With A Subordinate
Employee Who Was A Witness In The Federal Civil
Rights Action Brought Against Him
The testimony of the President and Ms. Lewinsky regarding
their last meeting are in direct conflict. The President
testified that he stuck his head out of his office and said
hello to Ms. Lewinsky at the time of their last meeting. Ms.
Lewinsky testified that the President gave her Christmas gifts,
and they talked about the Jones v. Clinton case.\129\
Specifically, she wanted to know how she got put on the witness
list and they discussed the subpoena and its direct reference
to a hat pin which was the first gift he had ever given
her.\130\ The evidence supports that the President lied.
---------------------------------------------------------------------------
\129\ Id. at 101.
\130\ Id. Corroborating evidence shows that Ms. Currie called Ms.
Lewinsky and asked her to come to the White House at 8:30 a.m. on the
morning of December 28, the day of their last meeting. WAVES records
indicate that the meeting was requested by Ms. Currie and that Ms.
Lewinsky entered the White House at 8:16 a.m., December 28, 1997. After
she arrived at the Oval Office, she, the President and Ms. Currie
played with Buddy, the President's dog, and chatted. Then the President
took Ms. Lewinsky into the study and gave her several Christmas
presents: a marble bear's head, a Rockettes blanket, a Black Dog
stuffed animal, a small box of chocolate, a pair of joke sunglasses,
and a pin with the New York skyline on it. Ms. Lewinsky testified that
on this occasion she and the President had a ``passionate and
physically intimate kiss.'' Id.
---------------------------------------------------------------------------
h. The President Lied In His Deposition About His Knowledge
That The Contents Of An Affidavit Executed By A
Subordinate Federal Employee Who Was A Witness In
The Federal Civil Rights Action Brought Against Him
As discussed elsewhere, the President affirmed to the court
in his civil deposition the truth of the statements contained
in Ms. Lewinsky's affidavit regarding sexual relations. The
President and Ms. Lewinsky concocted a cover story with the
willful intent to deceive the court. As the evidence shows, the
President did in fact have sexual relations with Ms. Lewinsky.
The evidence supports that the President lied.
(3) Article III--Obstruction of Justice
In his conduct while President of the United States,
William Jefferson Clinton, in violation of his constitutional
oath faithfully to execute the office of President of the
United States and, to the best of his ability, preserve,
protect, and defend the Constitution of the United States, and
in violation of his constitutional duty to take care that the
laws be faithfully executed, has prevented, obstructed, and
impeded the administration of justice, and has to that end
engaged personally, and through his subordinates and agents, in
a course of conduct or scheme designed to delay, impede, cover
up, and conceal the existence of evidence and testimony related
to a Federal civil rights action brought against him in a duly
instituted judicial proceeding.
The means used to implement this course of conduct or
scheme included one or more of the following acts:
(1) On or about December 17, 1997, William Jefferson
Clinton corruptly encouraged a witness in a Federal civil
rights action brought against him to execute a sworn affidavit
in that proceeding that he knew to be perjurious, false and
misleading.
(2) On or about December 17, 1997, William Jefferson
Clinton corruptly encouraged a witness in a Federal civil
rights action brought against him to give perjurious, false and
misleading testimony if and when called to testify personally
in that proceeding.
(3) On or about December 28, 1997, William Jefferson
Clinton corruptly engaged in, encouraged, or supported a scheme
to conceal evidence that had been subpoenaed in a Federal civil
rights action brought against him.
(4) Beginning on or about December 7, 1997, and continuing
through and including January 14, 1998, William Jefferson
Clinton intensified and succeeded in an effort to secure job
assistance to a witness in a Federal civil rights action
brought against him in order to corruptly prevent the truthful
testimony of that witness in that proceeding at a time when the
truthful testimony of that witness could have been harmed.
(5) On January 17, 1998, at his deposition in a Federal
civil rights action brought against him, William Jefferson
Clinton corruptly allowed his attorney to make false and
misleading statements to a Federal Judge characterizing an
affidavit, in order to prevent questioning deemed relevant by
the Judge. Such false and misleading statements were
subsequently acknowledged by his attorney in a communication to
that judge.
(6) On or about January 18 and January 20-21, 1998, William
Jefferson Clinton related a false and misleading account of
events relevant to a Federal civil rights action brought
against him to a potential witness in that proceeding, in order
to corruptly influence the testimony of that witness.
(7) On or about January 21, 23 and 26, 1998, William
Jefferson Clinton made false and misleading statements to
potential witnesses in a Federal grand jury proceeding in order
to corruptly influence the testimony of those witnesses. The
false and misleading statements made by William Jefferson
Clinton were repeated by the witnesses to the grand jury,
causing the grand jury to receive false and misleading
information.
In all of this, William Jefferson Clinton has undermined
the integrity of his office, has brought disrepute on the
Presidency, has betrayed his trust as President, and has acted
in a manner subversive of the rule of law and justice, to the
manifest injury of the people of the United States. Wherefore,
William Jefferson Clinton, by such conduct, warrants
impeachment and trial, and removal from office and
disqualification to hold and enjoy any office of honor, trust,
or profit under the United States.
Article III passed the Judiciary Committee by a vote of 21
to 16 on December 11, 1998. I voted in support of its passage.
Article II, Section 1, clause 8 of the U.S. Constitution
states that before a President begins his term, he shall take
an oath. William Jefferson Clinton took the following oath: ``I
do solemnly swear that I will faithfully execute the Office of
President of the United States, and will to the best of my
ability, preserve, protect and defend the Constitution of the
United States.'' Furthermore, Article II, Section 3 of the
United States Constitution states in part that the President
shall ``take Care that the Laws be faithfully executed.''
President Clinton abrogated these duties by engaging in a
course of conduct that obstructed and impeded the
administration of justice. In so doing, he exhibited a complete
disregard and lack of respect for the solemnity of the judicial
process and the rule of law.
The following explanations for the individual paragraphs of
Article III clearly justify the conclusion that President
Clinton, using the powers of his high office, engaged
personally and through his subordinates and agents, in a course
of conduct or plan designed to delay, impede, cover up, and
conceal the existence of evidence and testimony related to the
duly instituted federal civil rights lawsuit of Jones v.
Clinton and the duly instituted investigation of Independent
Counsel Kenneth Starr.
Although the actions of the President do not have to rise
to the level of violating the federal statute regarding
obstruction of justice in order to justify impeachment, some if
not all of his actions clearly do. The general obstruction of
justice statute is 18 U.S.C. Sec. 1503. It provides in
pertinent part: ``whoever . . . corruptly or by threats or
force, or by any threatening letter or communication,
influences, obstructs, or impedes, or endeavors to influence,
obstruct, or impede, the due administration of justice, shall
be punished. . . '' \131\ In short, Sec. 1503 applies to
activities which obstruct, or are intended to obstruct, the due
administration of justice in both civil and criminal
proceedings. This section has been interpreted to apply only to
pending judicial proceedings.\132\ The Jones v. Clinton civil
rights lawsuit was pending at the time of all alleged
wrongdoing under this Article.
---------------------------------------------------------------------------
\131\ 18 U.S.C. Sec. 1503.
\132\ See, e.g., United States v. Neal, 951 F.2d 630, 632 (5th Cir.
1992).
---------------------------------------------------------------------------
a. On Or About December 17, 1997, The President Encouraged
A Witness In A Federal Civil Rights Action Brought
Against Him To Execute A Sworn Affidavit In That
Proceeding That He Knew To Be Perjurious, False And
Misleading
While the President has denied asking or encouraging Ms.
Lewinsky to lie by filing a false affidavit denying their
relationship, he concedes in his response to Question 18 of the
Committee's Requests for Admission that he told her that ``. .
. other witnesses had executed affidavits, and there was a
chance they would not have to testify.''
Ms. Lewinsky was more emphatic on the subject in her grand
jury testimony. When she asked the President what she should do
if called to testify, he said, ``Well, maybe you can sign an
affidavit. . . . The point of it would be to deter or to
prevent me from being deposed and so that could range anywhere
between . . . just somehow mentioning . . . innocuous things or
going as far as maybe having to deny any kind of
relationship.''\133\ She further stated that she was ``100%
sure that the President suggested that she might want to sign
an affidavit to avoid testifying.''\134\
---------------------------------------------------------------------------
\133\ H.Doc. 105-311, at 843-44.
\134\ Id. at 1558-59.
---------------------------------------------------------------------------
Ms. Lewinsky claims that the President never explicitly
told her to lie. The President and Ms. Lewinsky did have a
scheme to mislead and deceive court through the use of cover
stories and the proffer of a false affidavit.\135\
---------------------------------------------------------------------------
\135\ OIC Referral at 174.
---------------------------------------------------------------------------
Moreover, the attorneys for Paula Jones were seeking
evidence of sexual relationships the President may have had
with other state or federal employees. Such information is
often deemed relevant in sexual harassment lawsuits to help
prove the underlying claim of the plaintiff, and Judge Susan
Weber Wright ruled that Paula Jones was entitled to this
information for the purposes of discovery. Consequently, when
the President encouraged Monica Lewinsky to file an affidavit,
he knew that it would have to be false for Ms. Lewinsky to
avoid testifying. If she filed a truthful affidavit, one
acknowledging a sexual relationship with the President, she
would have been called as a deposition witness and her
subsequent truthful testimony would have been damaging to the
President both politically and legally.
b. On Or About December 17, 1997, The President Corruptly
Encouraged A Witness In A Federal Civil Rights
Action Brought Against Him to Give Perjurious,
False and Misleading Testimony If And When Called
To Testify Personally in That Proceeding.
Ms. Lewinsky's statements that no one told her to lie are
not dispositive as to whether the President is guilty of
obstruction of justice. One need not directly command another
to lie in order to be guilty of obstruction: ``One who proposes
to another that the other lie in a judicial proceeding is
guilty of obstructing justice. The statute prohibits elliptical
suggestions as much as it does direct commands.'' \136\ Indeed,
the facts cannot be taken in a vacuum, they must be examined in
their proper context. While Ms. Lewinsky and the President both
have testified ``I never asked her to lie'' and ``he never
asked me to lie,'' the circumstantial evidence is overwhelming.
The statement was not necessary because they concocted the
cover story and both understood the willful intent to conceal
the relationship in order to impede justice in Jones v.
Clinton.
---------------------------------------------------------------------------
\136\ United States v. Tranakos, 911 F.2d 1422, 1432 (10th Cir.
1990) (citations omitted).
---------------------------------------------------------------------------
c. On Or About December 28, 1997, The President Corruptly
Engaged In, Encouraged, Or Supported A Scheme To
Conceal Evidence That Had Been Subpoenaed In A
Federal Civil Rights Action Brought Against Him
See the discussion regarding the evidence and findings
under B(1)(d), supra.
d. Beginning On Or About December 7, 1997, And Continuing
Through And Including January 14, 1998, the
President Intensified And Succeeded In An Effort To
Secure Job Assistance To A Witness In A Federal
Civil Rights Action Brought Against Him In Order To
Corruptly Prevent The Truthful Testimony Of That
Witness In That Proceeding At A Time When The
Truthful Testimony Of That Witness Would Have Been
Harmful To Him
On December 5, 1997, Paula Jones' attorneys notified the
President's attorneys of their witness list.\137\ The President
testified that he was notified the following day.\138\
---------------------------------------------------------------------------
\137\ OIC Referral at 88.
\138\ Id.
---------------------------------------------------------------------------
After having been transferred from the White House to the
Pentagon Ms. Lewinsky made repeated demands of the President
for a job that would return her to the White House. She sent a
letter to the President on July 3, 1997, which ``obliquely
threatened to disclose their relationship. If she was not going
to return to work at the White House, she wrote, then she would
`need to explain to my parents exactly why that wasn't
happening.' '' \139\
---------------------------------------------------------------------------
\139\ Id. at 66.
---------------------------------------------------------------------------
After being rebuffed by the President on December 5, 1997,
Ms. Lewinsky drafted a letter to the President expressing her
remorse over what appeared to be the end of their affair.\140\
The following day she went to the White House to deliver the
letter to the President, however she was told she would have to
wait approximately forty minutes because the President had a
visitor, who she learned was Eleanor Mondale.\141\ Upon hearing
such news Ms. Lewinsky was ``livid.'' \142\ When the President
learned that she was aware who he was meeting with, the
President became irate and indicated that someone's job was in
jeopardy.\143\ Such facts are important given that the
President knew that Ms. Lewinsky was on the witness list for a
case in which he was the defendant; he knew that she could be a
potential bombshell to his defense strategy in Jones v.
Clinton.
---------------------------------------------------------------------------
\140\ Id. at 89.
\141\ Id.
\142\ Id. at 90.
\143\ Id.
---------------------------------------------------------------------------
The President then invited her over to the White House that
afternoon in order to rectify the situation.\144\ During the
meeting Ms. Lewinsky informed the President that Vernon Jordan
had ``done nothing to help her find a job.'' \145\ In response
the President, now well motivated to ensure that Ms. Lewinsky
would not become a hostile witness to the defense in Jones v.
Clinton, said he would ``talk to him. I'll get on it.'' \146\
---------------------------------------------------------------------------
\144\ Id.
\145\ Id.
\146\ Id. at 91.
---------------------------------------------------------------------------
On December 11, 1997, Judge Susan Weber Wright ordered that
Paula Jones was entitled to information about any state or
federal employee with whom he had sexual relations, or proposed
or sought to have sexual relations. Keeping Ms. Lewinsky on the
team was now of critical importance.
On that same day, December 11, 1997, Vernon Jordan met with
Ms. Lewinsky and provided her with the names of three
individuals she was to contact for a job.\147\ Later that day
Vernon Jordan personally called three executives in order to
find her a job.\148\ Approximately one week later Ms. Lewinsky
had two job interviews in New York City.\149\
---------------------------------------------------------------------------
\147\ Id. at 93.
\148\Id.
\149\ Id. at 95.
---------------------------------------------------------------------------
The evidence shows that on January 7, 1998, Ms. Lewinsky
signed the false affidavit. She showed the affidavit on that
day to Vernon Jordan, who in turn reported to the President
that it had been signed. The following day Vernon Jordan called
MacAndrews and Forbes' CEO, Ron Perelman, to ``make things
happen, if they could happen,'' because Ms. Lewinsky's
interview went poorly. Mr. Jordan called Ms. Lewinsky and told
her not to worry. That evening Ms. Lewinsky was called by
MacAndrews and Forbes and told that she would be given a second
interview the next morning. The next morning, Ms. Lewinsky
received her reward for signing the false affidavit. After a
series of interviews with MacAndrews and Forbes personnel, she
was informally offered a job. When Ms. Lewinsky called Mr.
Jordan to tell him, he passed the good news along to Betty
Currie. Tell the President, ``mission accomplished.'' Later,
Mr. Jordan called the President personally and told him the
news.
Mr. Perelman testified that Mr. Jordan had never called him
before about a job recommendation. Jordan, on the other hand,
said that he called Mr. Perelman for hiring: the former mayor
of New York City; a very talented attorney from the law firm
Akin Gump; a Harvard Business School graduate; and Monica
Lewinsky. How does Ms. Lewinsky fit into the caliber of persons
who would merit Mr. Jordan's full attention and direct
recommendation to a CEO of a Fortune 500 company?
The President and Ms. Lewinsky both testified that she was
not promised a job in exchange for her silence. However, upon
examining the compelling evidence in context, reasonable people
would conclude that the President provided such assistance to
Ms. Lewinsky because she was a witness in the civil suit in
which he was the defendant and her truthful testimony would be
harmful to the President. The quid pro quo of this arrangement
was the false affidavit in exchange for Ms. Lewinsky's job in
New York.
e. On January 17, 1998, At This Deposition In a Federal
Civil Rights Action Brought Against Him, the
President Corruptly Allowed His Attorney To Make
False And Misleading Statements To A Federal Judge
Characterizing An Affidavit, In Order To Present
Questioning Deemed Relevant By the Judge. Such
False And Misleading Statements Were Subsequently
Acknowledged By His Attorney In A Communication To
That Judge
On January 15, 1998, Robert Bennett, attorney for President
Clinton in the case of Jones v. Clinton, obtained a copy of the
affidavit Monica Lewinsky filed in an attempt to avoid having
to testify in the case of Jones v. Clinton.150 In
her affidavit, Ms. Lewinsky asserted that she had never had a
sexual relationship with President Clinton. At the President's
deposition on January 17, 1998, an attorney for Paula Jones
began to ask the President questions about his relationship
with Ms. Lewinsky. Mr. Bennett objected to the ``innuendo'' of
the question and he pointed out that she had signed an
affidavit denying a sexual relationship with the President. Mr.
Bennett asserted that this indicated ``there is not sex of any
kind in any manner, shape or form,'' and after a warning from
Judge Wright he stated that, ``I am not coaching the witness.
In preparation of the witness for this deposition the witness
is fully aware of Ms. Jane Doe 6's affidavit, so I have not
told him a single thing he doesn't know.'' Mr. Bennett clearly
used the affidavit in an attempt to stop the questioning of the
President about Ms. Lewinsky. The President did not say
anything to correct Mr. Bennett, even though he knew the
affidavit was false. Judge Wright overruled Mr. Bennett's
objection and allowed the questioning to proceed. Later in the
deposition, Mr. Bennett read the President the portion of Ms.
Lewinsky's affidavit in which she denied having a ``sexual
relationship'' with the President and asked the President if
Ms. Lewinsky's statement was true and accurate. The President
responded: ``That is absolutely true.'' 151 The
grand jury testimony of Ms. Lewinsky, given under oath and
following a grant of transactional immunity, confirmed that the
contents of her affidavit were not true:
\150\ H. Doc. 105-316, at 420-21.
\151\ Deposition of President Clinton in the case of Jones v.
Clinton, January 17, 1998, p. 204.
---------------------------------------------------------------------------
Q: ``Paragraph 8 . . . [of the affidavit] says, ``I
have never had a sexual relationship with the
President.'' Is that true?
A: No.'' 152
\152\ H. Doc. 105-311, at 924.
---------------------------------------------------------------------------
When President Clinton was asked during his grand jury
testimony how he could have lawfully sat silent at his
deposition while his attorney made a false statement to a
United States District Court Judge, the President first said
that he was not paying ``a great deal of attention'' to Mr.
Bennett when he said this. The President also stated that ``I
didn't pay any attention to this colloquy that went on.'' The
videotaped deposition shows the President looking in Mr.
Bennett's direction while Mr. Bennett was making the statement
about no sex of any kind. The President then argued that when
Mr. Bennett made the assertion that there ``is no sex of any
kind . . .,'' Mr. Bennett was speaking only in the present
tense. The President stated, `` It depends on what the meaning
of the word ``is'' is.'' and that ``if it means there is none,
that was a completely true statement.'' 153
President Clinton's suggestion that he might have engaged in
such a parsing of the words at his deposition is at odds with
his assertion that the whole argument just passed him by.
---------------------------------------------------------------------------
\153\ Id. at 476-77.
---------------------------------------------------------------------------
f. On Or About January 18 and January 20-21, 1998, The
President Related A False And Misleading Account Of
Events Relevant To A Federal Civil Rights Action
Brought Against Him To A Potential Witness In That
Proceeding, In Order To Corruptly Influence The
testimony Of That Witness
The record reflects that President Clinton attempted to
influence the testimony of Betty Currie, his personal secretary
by coaching her to recite inaccurate answers to possible
questions that might be asked of her if called to testify in
the Jones v. Clinton. The President did this shortly after he
was deposed in the case. In his deposition, he invokes Betty
Currie's name numerous times. Even though Betty Currie's name
was not on the witness list, it is very logical for the
President to assume that the plaintiff's lawyers in the Jones
v. Clinton would call her as a witness. That is why the
President called her about two hours after the completion of
his deposition and asked her to come into the office the next
day, which was a Sunday.154 Why would the President
be trying to get information from Ms. Currie about false
statements or refresh his recollection concerning falsehoods.
The evidence supports the conclusion that the President was
trying to influence the testimony of a potential witness so
that she would repeat his rendition of the facts which were
meant to deceive the court.
---------------------------------------------------------------------------
\154\ Request for Admission No. 47.
---------------------------------------------------------------------------
g. On Or About January 21, 23, And 26, 1998, The President
Made False And Misleading Statements To Potential
Witnesses In A Federal Grand Jury Proceeding In
Order To Corruptly Influence The Testimony Of Those
Witnesses. The False and Misleading Statement Made
By The President Were Repeated By The Witnesses To
the Grand Jury, Causing The Grand Jury To Receive
False And Misleading Information.
The record reflects that on the dates in question President
Clinton met with a total of five aides who would later be
called to testify before the grand jury. The meeting took place
shortly after the President's deposition in the Jones v.
Clinton case and following a Washington Post story, published
on January 21, 1998, which detailed the relationship between
the President and Ms. Lewinsky. During the meetings the
President made false and misleading statements to his aides
which he knew would be repeated once they were called to
testify.
The President submitted the same response to each of seven
questions (Nos. 62-68) relating to this topic as set forth in
the Committee's Requests for Admission. The President answered
by stating that ``I did not want my family, friends, or
colleagues to know the full nature of my relationship with Ms.
Lewinsky. In the days following the January 21, 1998,
Washington Post article, I misled people about this
relationship. . . .'' 155
---------------------------------------------------------------------------
\155\ Request for Admissions Nos. 62-68.
---------------------------------------------------------------------------
According to aides who met with the President on the days
in question, he insisted unequivocally that he had not indulged
in a sexual relationship with Ms. Lewinsky or otherwise done
anything inappropriate. On January 21, 1998, in a conversation
with Sydney Blumenthal, Assistant to the President, the
President said that he rebuffed Ms. Lewinsky after she `` `came
at me and made a sexual demand on me.' '' The President also
told Mr. Blumenthal, `` `I haven't done anything wrong.' ''
156 Also on January 21, 1998, the President met with
Erskine Bowles, his Chief of Staff, and two of Mr. Bowles'
Deputies, Sylvia Matthews and John Podesta. The President began
the meeting by telling Mr. Bowles that the Washington Post
story was not true.157 Further, the President stated
that he had not had a sexual relationship with her, and had not
asked anyone to lie.158
---------------------------------------------------------------------------
\156\ Grand Jury Testimony of Deposition of Sydney Blumenthal, June
4, 1998, p.49.
\157\ Grand Jury Testimony of John Podesta, June 16, 1998, p. 85.
\158\ Id.
---------------------------------------------------------------------------
Two days later, on January 23, 1998, as he was preparing
for his State of the Union address, the President engaged Mr.
Podesta in another conversation in which he ``was extremely
explicit in saying he never had sex with her.'' When the OIC
attorney asked for greater specificity, Mr. Podesta stated that
the President said he had not had oral sex with Ms. Lewinsky,
and in fact was ``denying any sex in any way, shape or form . .
. .'' 159 The President also explained that Ms.
Lewinsky's frequent visits to the White House were nothing more
than efforts to visit Betty Currie. Ms. Currie was either with
the President and Ms. Lewinsky during these ``visits,'' or she
was seated at her desk outside the Oval Office with the door
open.160
---------------------------------------------------------------------------
\159\ Id.at 91-3.
\160\ H. Doc. 105-316, at 3310.
---------------------------------------------------------------------------
Finally, on January 26, 1998, the President met with Harold
Ickes, another Deputy Chief of Staff to Mr. Bowles. At the
time, the President said that he had not had a sexual
relationship with Ms. Lewinsky, had not obstructed justice in
the matter, and had not instructed anyone to lie or obstruct
justice.161
---------------------------------------------------------------------------
\161\ Id. at 1487, 1539
---------------------------------------------------------------------------
By his own admission more than seven months later, the
President said that he had told a number of his aides that he
did not ``have an affair with [Ms. Lewinsky ] or . . . have sex
with her.'' He also admitted that he knew that these aides
might be called before the grand jury as
witnesses.162
---------------------------------------------------------------------------
\162\ H. Doc. 105-311, at 647.
---------------------------------------------------------------------------
(4) Article IV--Perjury Before the House
Using the powers and influence of the office of President
of the United States, William Jefferson Clinton, in violation
of his constitutional oath faithfully to execute the office of
President of the United States and, to the best of his ability,
preserve, protect, and defend the Constitution of the United
States, and in disregard of his constitutional duty to take
care that the laws be faithfully executed, has engaged in
conduct that resulted in misuse and abuse of his high office,
impaired the due and proper administration of justice and the
conduct of lawful inquiries and contravened the authority of
the legislative branch and the truth-seeking purpose of a
coordinate investigative proceeding, in that, as President,
William Jefferson Clinton refused and failed to respond to
certain written requests for admission and willfully made
perjurious, false and misleading sworn statements in response
to certain written requests for admission propounded to him as
part of the impeachment inquiry authorized by the House of
Representatives of the Congress of the United States. William
Jefferson Clinton, in refusing and failing to respond and in
making perjurious, false and misleading statements, assumed to
himself functions and judgments necessary to the exercise of
the sole power of impeachment vested by the Constitution in the
House of Representatives and exhibited contempt for the
inquiry.
In doing this, William Jefferson Clinton has undermined the
integrity of his office, has brought disrepute on the
Presidency, has betrayed his trust as President, and has acted
in a manner subversive of the rule of law and justice, to the
manifest injury of the people of the United States.
Wherefore, William Jefferson Clinton, by such conduct,
warrants impeachment and trial, and removal from office and
disqualification to hold and enjoy any office of honor, trust,
or profit under the United States.
The House Judiciary Committee voted in favor of reporting
Article IV to the House of Representatives by a vote of 21 to
16 on December 12, 1998. I voted in favor of its passage.
He who permits himself to tell a lie once, finds it
much easier to do it a second and third time, till at
length it becomes habitual; he tells lies without
attending to it, and truths without the world's
believing him. This falsehood of the tongue leads to
that of the heart, and in time depraves all its good
dispositions.163
---------------------------------------------------------------------------
\163\ Letter from Thomas Jefferson to Peter Carr (August 19, 1785).
Pursuant to House Resolution 581, on November 5, 1998, the
Judiciary Committee sent a letter to the President seeking his
cooperation in the impeachment investigation. The letter asked
the President to answer 81 questions, under oath, utilizing an
enclosed affidavit.
The President provided false and misleading statements
under oath in response to the written requests for admissions.
Specifically, the President did not answer completely and
honestly request for admissions numbers: 19, 20, 24, 26, 27,
34, 42, 43, 52, and 53. Failure to answer the questions
completely and honestly represents a violation of his duty to
cooperate with the congressional committee exercising the
impeachment power.
I will briefly discuss the pertinent requests for
admissions one at a time.
Question 19. Do you admit or deny that on or about December
17, 1997, you suggested to Monica Lewinsky that she could say
to anyone inquiring about her relationship with you that her
visits to the Oval Office were for the purpose of visiting with
Betty Currie or to deliver papers to you?
Answer Provided. The President responded that such cover
stories were only in a non-legal context: [I] ``may have talked
about what to do in a non-legal context at some point in the
past, but I have no specific memory of that conversation.'' The
President maintained that any such conversation was not in the
context of the Jones v. Clinton case.
Facts as Provided in Referral: Under oath Ms. Lewinsky
testified that she had a conversation with the President about
her affidavit, and that at some point the President suggested
the cover story: ``[Y]ou can always say you were coming to see
Betty or that you were bringing me letters.''
Question 20. Do you admit or deny that you gave false and
misleading testimony under oath when you stated during your
deposition in the case of Jones v. Clinton on January 17, 1998,
that you did not know if Monica Lewinsky had been subpoenaed to
testify in that case?
Answer Provided. The President contradicted his deposition
testimony. In the answer to request No. 20 the President stated
that he did know that Ms. Lewinsky had been subpoenaed.
Facts As Provided In Referral: In the deposition he stated
that he did not know about the subpoena, and did not speak with
anyone besides his attorneys regarding the subpoena. This
question and answer demonstrates a direct contradiction. Thus,
it demonstrates an intent to mislead either at the time of the
deposition, or in answering the requests for admissions.
Question 24. Do you admit or deny that on or about December
28, 1997, you had a discussion with Monica Lewinsky at the
White House regarding gifts you had given to Ms. Lewinsky that
were subpoenaed in the case of Jones v. Clinton?
Answer Provided. The President stated that when Ms.
Lewinsky inquired about the subpoena covering the gifts, he
told her if subpoenaed she would have to turn over the gifts.
Facts As Provided In Referral: Ms. Lewinsky testified that
she expressed her concern about the Jones case, and suggested
that the gifts be put away. According to Ms. Lewinsky, the
President responded that he would think about it or consider
it. Thus, in the requests for admission the President states
that he told her she would have to follow the law. The
testimony of Ms. Lewinsky contradicts such assertions.
Question 26. Do you admit or deny that on or about December
28, 1997, you discussed with Betty Currie gifts previously
given by you to Monica Lewinsky?
Answer. The President responded that he did not recall any
conversation with Ms. Currie regarding the gifts. Further, he
answered that he did not instruct Ms. Currie to retrieve the
gifts.
Facts As Provided In Referral: According to Ms. Lewinsky's
testimony, Betty Currie called her on the telephone and stated
that she understood Ms. Lewinsky had something to give her.
Phone record indicate that Ms. Currie initiated the phone call.
Thus, the evidence shows that the President was attempting to
avert the whole truth and nothing but the truth as to this
question.
Question 27. Do you admit or deny that on or about December
28, 1998, you requested, instructed, suggested to or otherwise
discussed with Betty Currie that she take possession of gifts
previously given to Monica Lewinsky by you?
Answer. The President responded that he could not recall
any such conversation. He further stated that he did not
instruct Ms. Currie to take possession of the gifts. The
evidence as to these matters is discussed in regard to Question
26, supra.
Question 34. Do you admit or deny that you had knowledge
that any facts or assertions contained in the affidavit
executed by Monica Lewinsky on January 7, 1998, in the case
Jones v. Clinton were not true?
Answer. As to paragraph 8 pertaining to sexual relations,
the President maintained that his deposition answer attesting
to Ms. Lewinsky's affidavit was true. In paragraph 8 of Ms.
Lewinsky's affidavit she stated that she had not engaged in
sexual relations. In the deposition the President affirmed the
truthfulness of Ms. Lewinsky's affidavit. In the request for
admission answer the President persists in stating that he was
truthful because he understood her interpretation of sexual
relations to only include sexual intercourse. Such a response
is yet another attempt to evade the truth and mislead the
Committee.
Question 42. Do you admit or deny that when asked on
January 17, 1998, in your deposition in the case of Jones v.
Clinton if you had ever given gifts to Monica Lewinsky, you
stated that you did not recall, even though you actually had
knowledge of giving her gifts in addition to gifts from the
``Black Dog?''
Answer. The President stated that his response at the
deposition was ``I don't recall. Do you know what they were?''
The President maintains that by responding in such a manner he
did not mean that he could not remember giving her gifts, only
that he could not remember what they were.
Facts As Provided In Referral: The evidence shows that only
three weeks earlier the President and Ms. Lewinsky had a
discussion about the hat pin which was under subpoena. The
evidence further shows that both parties expressed concern
about that particular gift under subpoena. The President's
lawyer, Mr. Ruff, vouched that the President has an impeccable
memory. Given that the discussion of gifts was only three weeks
earlier, it is highly unlikely that the President could not
remember the hat pin in particular. The President's answers
were therefore evasive and less than truthful.
Question 43. Do you admit or deny that you gave false and
misleading testimony under oath in your deposition in the case
of Jones v. Clinton when you responded ``once or twice'' to the
question ``has Monica Lewinsky ever given you any gifts?''
Answer. The President responded in his deposition by
stating that he gives and receives numerous gifts, and that he
thought she had given him one or two. In fact, Ms. Lewinsky
gave the President approximately 38 gifts. In the request for
admissions the President stated that his deposition response
was not false and misleading because given the large number of
gifts he receives he could not recall a precise amount.
Facts As Provided In Referral: In fact, the President was
not even close to the number of gifts she gave him. Once again,
taken within the context of the overwhelming evidence, this is
another example of the President's feigned memory problems
which represents an intent to mislead the Committee and
withhold the truth.
Question 52. Do you admit or deny that on January 18, 1998,
at or about 5:00 p.m. you had a meeting with Betty Currie at
which you made statements similar to any of the following
regarding your relationship with Monica Lewinsky?
a. ``You were always there when she was there, right? We
were never really alone.''
b. ``You could see and hear everything.''
c. ``Monica came on to me, and I never touched her right?''
d. ``She wanted to have sex with me and I couldn't do
that.''
Answer. In response to the requests for admissions, the
President stated that he asked Ms. Currie certain questions,
but could not remember exactly what was said.
Facts As Provided In Referral: In fact, Ms. Currie
testified that she understood his comments to be statements
rather than questions. Further, the record indicates that the
President made similar statements at a meeting held around 5
p.m. that day.
Question 53. Do you admit or deny that you had a
conversation with Betty Currie within several days of January
18, 1998, in which you made statements similar to any of the
following regarding your relationship with Monica Lewinsky?
a. ``You were always there when she was there, right?''
``We were never really alone.''
b. ``You could see and hear everything.''
c. ``Monica came on to me, and I never touched her right?'
d. ``She wanted to have sex with me and I couldn't do
that.''
Answer. In the answer to the requests for admissions the
President stated that in his grand jury testimony he stated
that he did not know that he had another conversation with Ms.
Currie in which he made statements similar to those quoted.
Facts As Provided In Referral: The record indicates that
the President made similar statements to Ms. Currie on another
occasion close in time to January 18, 1998.
VI. CONCLUSIONS
Those in defense of the President argue that even if all
the evidence is true, the activities do not amount to
impeachable offenses. They insist that the President's actions
involved private conduct, and the impeachment remedy for
corruption does not apply to private conduct. Such an argument
is both convenient and misguided. In the last twenty years
Congress has indeed impeached individuals for private conduct.
There have been three impeachments involving judges since
the impeachment of President Nixon. Judge Harry Claiborne was
impeached for making a false and fraudulent income tax return.
Judge Walter Nixon was impeached for making false and
misleading statements before a federal grand jury. Judge Alcee
Hastings was impeached for perjury in a criminal trial. The
alleged perjury committed by Judge Hastings was to conceal his
involvement in a bribery conspiracy. Thus, perjury has played a
central role in each of the three judicial impeachments.
During Judge Claiborne's impeachment proceedings,
Representative Hamilton Fish stated that: ``[i]mpeachable
conduct does not have to occur in the course of the performance
of an officer's official duties. Evidence of misconduct,
misbehavior, high crimes, and misdemeanors can be justified
upon one's private dealings as well as one's exercise of public
office. That, of course, is the situation in this case.''
164
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\164\ Cong. Rec. H4713 (daily ed. July 22, 1986).
---------------------------------------------------------------------------
In the present case, even if the President's actions were
``private,'' the evidence leads a reasonable person to the
conclusion that the President lied under oath, obstructed
justice and tampered with witnesses.
The President argues that he did not commit perjury because
the answers he provided under oath were literally correct. Such
a defense relies on a misguided parsing and hair-splitting of
words. The law is clear. Perjury charges can be imposed upon a
witness who feigns forgetfulness.165 When a witness
feigns forgetfulness, the prosecutor need only prove that the
witness had information or knowledge about the events in
question.166 Such circumstances require an
examination of all the evidence in the case, or the
circumstantial evidence which tends to show that the witness in
fact had information about the events in
question.167 If the circumstantial evidence shows
beyond a reasonable doubt that the witness had information, a
conviction may lie.168
---------------------------------------------------------------------------
\165\ See United States v. Dean, 55 F.3d 640 (D.C. Cir. 1995),
cert. denied, 516 U.S. 184 (1996); see also United States v. Dunnigan,
507 U.S. 87 (1993).
\166\ See United States v. Dean, 55 F.3d 640 (D.C. Cir. 1995),
cert. denied, 516 U.S. 184 (1996).
\167\ Id.
\168\ Id.
---------------------------------------------------------------------------
Before the grand jury, and throughout this investigation,
the President has repeatedly said, ``I don't remember,'' and
``I don't recall.'' When Mr. Ruff, the Chief White House
Counsel, testified before the Judiciary Committee in the
President's defense he stated that the President has an
excellent memory. Interestingly, the President had a motive to
lie from the moment Judge Wright ordered that an inquiry into
other federal and state employees with whom the President had
sexual relations was permissible and relevant to the Jones v.
Clinton case. The overwhelming circumstantial evidence in this
case demonstrates that the President feigned forgetfulness on a
consistent basis.
For example, the evidence shows that the President met with
Ms. Lewinsky on December 28, 1997, and had a discussion about
certain gifts the two had exchanged, specifically, the hat pin
which was listed in Ms. Lewinsky's subpoena. The evidence also
shows that the President's secretary went to retrieve numerous
gifts from Ms. Lewinsky that day, the Sunday after Christmas
weekend. In fact, the President was concerned that a reporter
questioned Ms. Lewinsky about a hat pin that was a gift from
the President. Yet, three weeks later in the Jones v. Clinton
deposition the President could not recall specific gifts, and
later testified that he was not concerned about them on that
day. Again, examining the cumulative evidence in this case, it
is very clear the President had knowledge about this matter,
but feigned forgetfulness to the court.
On at least 23 questions the President professed a lack of
memory. This from a man who is renowned for his remarkable
memory and ability to recall details, as testified to by White
House Counsel, Mr. Ruff, before the Judiciary Committee.
In a letter to House leaders, numerous legal scholars
stated, ``[i]t goes without saying that lying under oath is a
very serious offense.'' 169 They also recognize that
perjury is an attack on our system of laws, ``[p]erjury and
obstructing justice can without doubt be impeachable offenses .
. . Moreover, covering up a crime furthers or aids the
underlying crime.'' 170
---------------------------------------------------------------------------
\169\ Letter from professors of law to Speaker Gingrich and House
leaders 3 (Nov. 6, 1998) (on file with Congressman Buyer).
\170\ Id.
---------------------------------------------------------------------------
Another fact which tends to show that perjury is indeed a
high crime worthy of impeachment is the fact that perjury and
bribery are accorded the same penalty under the Federal
Sentencing Guidelines. The Guidelines are a product of the
Federal Sentencing Commission which determines the penalty for
criminal offenses by examining the predicate offense, or the
crime for which the person was charged, and then lists
mitigating and aggravating factors in order to reach a
recommended sentence for courts to consider when imposing a
punishment on a convicted criminal. According to the
Commission, bribery and perjury warrant the same penalty. It
follows that the two crimes are comparable in gravity according
to the Commission.
VII. Censure
Resolved by the Senate and House of Representatives
of the United States of America in Congress assembled,
That it is the sense of Congress that--
(1) on January 20, 1993, William Jefferson Clinton
took the oath prescribed by the Constitution of the
United States faithfully to execute the office of
President; implicit in that oath is the obligation that
the President set an example of high moral standards
and conduct himself in a manner that fosters respect
for the truth; and William Jefferson Clinton, has
egregiously failed in his obligation, and through his
actions violated the trust of the American people,
lessened their esteem for the office of President, and
dishonored the office which they have entrusted to him;
(2)(A) William Jefferson Clinton made false
statements concerning his reprehensible conduct with a
subordinate;
(B) William Jefferson Clinton wrongly took steps to
delay discovery of the truth; and
(C) inasmuch as no person is above the law, William
Jefferson Clinton remains subject to criminal and civil
penalties; and
(3) William Jefferson Clinton, President of the
United States, by his conduct has brought upon himself,
and fully deserves, the censure and condemnation of the
American people and the Congress; and by his signature
on this Joint Resolution, acknowledges this censure and
condemnation.
On December 12, 1998, the Judiciary Committee considered a
censure resolution. After lengthy debate, the Committee
declined to submit such a resolution by a vote of 14 in favor
to 22 in opposition. I opposed the censure resolution.
Congress lacks the power to punish the President aside from
formal impeachment procedures. The impeachment clauses of the
Constitution specifically provide that the Chief Executive is
subject to impeachment by the House and trial by the
Senate.171
---------------------------------------------------------------------------
\171\ ``The House of Representatives . . . shall have the sole
Power of Impeachment.'' U.S. Const. art. I, Sec. 2. ``The Senate shall
have the sole Power to try all Impeachments.'' U.S. Const. art. I,
Sec. 3. ``The President, Vice President and all civil Officers of the
United States, shall be removed from Office on Impeachment for, and
Conviction of, Treason, Bribery, or other high Crimes and
Misdemeanors.'' U.S. Const. Art II, Sec. 4.
---------------------------------------------------------------------------
The Framers' decision to confine legislative sanctioning of
the executive officials to removal upon impeachment was
carefully considered. By forcing the House and Senate to act as
a tribunal and trial jury, rather than merely as a legislative
body, they infused the process with notions of due process to
prevent impeachment from becoming a common tool of party
politics. The requirement of removal upon conviction
accentuates the magnitude of the procedure, encouraging serious
deliberation among members of Congress. Most importantly, by
refusing to include any consequences less serious than removal
as outcomes of the impeachment process, the Framers made
impeachment into such an awesome weapon that Congress could not
use it to harass executive officials or otherwise interfere
with operations of coordinate branches.
The Framers of the Constitution purposely avoided granting
the legislature the power to impose nonjudicial punishment, as
``such bills are condemned in the Constitution because they
represent legislative encroachment on the powers of the
judiciary.'' 172 A bill of attainder ``assumes . . .
judicial magistracy; it pronounces upon the guilt of the party,
without any of the forms or safeguards of trial.''
173 The impeachment procedures explicitly provided
by the Constitution provide such fairness. Censure is an
inappropriate method to bypass the impeachment procedures
prescribed in the Constitution.
---------------------------------------------------------------------------
\172\ Linnas v. INS, 790 F.2d 1024, 1028, cert. denied, 107 S.Ct.
600, 479 U.S. 995 (1986).
\173\ Id. at 1028, quoting Cummings v. Missouri, 71 U.S. (4 Wall.)
271, 323, 18 L.Ed. 356 (1866).
---------------------------------------------------------------------------
Some members have proposed censure as a sanction from
analogy to the legislative procedures by which members of each
House censure its own members. The analogy fails because the
Constitution expressly provides plenary authority to each House
of Congress to fashion penalties for member of the legislative
branch short of expulsion, but provides no such authority to
discipline officers of other branches in the same manner. It is
pursuant to this explicit authority that each House can require
one of its members to go to the well of the House and receive
the judgment of their peers.
For the President or any other civil officer, this kind of
shaming punishment by the legislature is precluded, since the
impeachment provisions permit Congress only to remove an
officer of another branch and disqualify him from office. Not
only would such a punishment undermine the separation of
powers, but it would violate the Constitution's prohibition on
bills of attainder.
The law is clear on legislative punishments without the
benefit of a trial. Such punishments violate Article I, section
9 of the Constitution which prohibits bills of attainder. A
bill of attainder is defined as a legislative act which
inflicts punishment without a judicial trial.174,
175 In basic terms, that means that other than through
impeachment procedures, Congress may not punish the President
for past acts. These constitutional prohibitions on bills of
attainder prohibit state legislatures, as well as the federal
legislature from imposing an expedited or summary punishment
for past conduct.176
---------------------------------------------------------------------------
\174\ Historically, the bill of attainder was used to punish a
certain person or a group by death, prison, banishment, punitive
confiscation of property, or by barring participation in specific
employment or vocation. Artway v. Attorney General of the State of New
Jersey, 81 F.3d 1235 (3rd Cir. 1996).
\175\ Nixon v. Administrator of General Services, 433 U.S. 425, 468
(1977); Linnas v. INS, 790 F.2d 1024, cert. denied, 107 S.Ct. 600, 479
U.S. 995 (1986); WMX Tech., Inc. v. Gasconade County, Mo., 105 F.3d
1195, 1201 (8th Cir. 1997); Charles v. Rice, 28 F.3d 1312, 1318 (1st
Cir. 1994); Antonio v. Wards Cove Packing Co., Inc., 10 F.3d 1485,
cert. denied, 115 S.Ct. 57, 513 U.S. 809 (9th Cir. 1993); U.S. v.
Patzer, 15 F.3d 934 (10th Cir. 1993).
\176\ Landraf v. USI Film Products, 114 S.Ct. 1483, 1497, 511 U.S.
244 (1994); Fraternal Order of Police Hobart Lodge No. 121 v. City of
Hobart, 864 F.2d 5451 (7th Cir. 1988); Artway v. Attorney General of
the State of New Jersey, 81 F.3d 1235, reh'g denied, 83 F.3d 594 (3rd
Cir. 1996).
---------------------------------------------------------------------------
Even a statement of reproval intended to punish the
President by discussing his behavior could potentially violate
the rule against bills of attainder.177 Censure
measures which include language of proposed articles of
impeachment could therefore implicate the bills of attainder
prohibition.
---------------------------------------------------------------------------
\177\ WMX Tech., Inc. v. Gasconade County, Mo., 105 F.3d 1195, 1201
(8th Cir. 1997); Selective Service System v. Minnesota Public Interest
Research Group, 104 S.Ct. 3348, 3352, 468 U.S. 841 (1984).
---------------------------------------------------------------------------
In order for a legislative measure to survive the bill of
attainder prohibition, it must pass a three prong test. The
test requires that the actual purpose, objective purpose, and
effect are non- punitive.178 Courts are directed to
examine the legislative intent of the measure to see if the
intent was to punish.179 If the objective purpose
was solely remedial, the measure may not qualify as
punitive.180 Similarly, if the intent of the measure
is to deter future acts of the same nature, it is likely not
punitive.181 Stated simply, a bill of attainder
prohibited by the Constitution contains three components:
specification of affected persons, some form of punishment, and
lack of a judicial trial.182
---------------------------------------------------------------------------
\178\ Artway v. Attorney General of the State of New Jersey, 81
F.3d 1235, 1263 (3rd Cir. 1996).
\179\ Id. at 1263.
\180\ Id.
\181\ Id.
\182\ Dehainaut v. Pena, 32 F.3d 1066 (7th Cir. 1994); Zilich v.
Longo, 34 F.3d 359 (6th Cir. 1994).
---------------------------------------------------------------------------
An integral part of the censure debate was whether the
purpose of censure is to punish the President. Would censure
serve a valid legislative purpose? What is the intent behind a
censure resolution? Is censure merely impeachment under another
name? Or is it a novel form of a plea bargain wherein a
``deal'' is made to mitigate the punishment? In answers to my
questions regarding the intent of the authors, Representative
Boucher of Virginia stated: ``It is not our purpose to have
findings of guilt. It is not our intent to punish the
President.'' However, a close examination of the wording in the
censure resolution appears that the implicit purpose would be
to shame the President, to voice disdain for his actions which
undermine the integrity of the office of the president, to
reprove his dubious if not criminal acts, i.e., to punish.
The censure resolution uses such words and phrases as,
``egregiously failed;'' ``violated the trust of the American
people;'' ``lessened their esteem;'' ``dishonored the office;''
``made false statements;'' ``reprehensible conduct;'' ``wrongly
took steps to delay discovery of the truth;'' and ``fully
deserves, the censure and condemnation.'' The use of these
words and phrases is not remedial, on the contrary, it is to
shame and condemn the President's misconduct.
Paragraph (2)(A) of the censure resolution states:
``William Jefferson Clinton made false statements concerning
his reprehensible conduct with a subordinate.'' This is in
reference to the President's sexual misconduct. It is an
expression of moral condemnation as a form of national
retribution. Therefore, in my opinion, it is a legislative
punishment neither contemplated by the express provisions nor
the design of the Constitution regarding separation of powers.
Some members of Congress argue that censuring the President
is a better idea than impeachment because that is ``what the
American people want.'' The American people want their elected
officials to act under and in accordance with the laws of this
nation. Further, the American people want their elected
representatives to take a stand on matters of national
importance, such as the integrity of our justice system, and
for Members of Congress and the Senate to exercise judgment in
matters of statecraft based on their intellect, not the
emotions of the moment, and for the President to do his duty to
faithfully execute and uphold the laws of this nation.
The facts and evidence in this case are overwhelming; the
allegations are grave.183 The Judiciary Committee,
endowed with the responsibility to investigate this evidence,
determined the allegations against the President do rise to the
level of impeachable offenses. A minority of Members disagreed
and offered a censure resolution as an alternative to
impeachment.
---------------------------------------------------------------------------
\183\ As discussed, the allegations substantiated by evidence
include: perjury while a defendant in a civil rights case, perjury as a
witness before a federal grand jury, subornation of perjury, witness
tampering, obstruction of justice, and misleading Congress in refusing
to answer the requests for admissions completely and truthfully.
* * * * * * *
---------------------------------------------------------------------------
On December 12, 1998, I delivered the final closing
argument for the majority on the Judiciary Committee on the
Articles of Impeachment:
Statement of Congressman Steve Buyer
December 12, 1998.
I thank the gentlewoman, Ms. Bono of California, for
yielding. I am going to support the Gekas amendment. I will
vote for Impeachment Article IV. The President's responses to
the 81 requests for admissions from the Judiciary Committee
were a continuation of a pattern of perjury and obstruction of
justice.
When we bring up the issues regarding the impeachment of
former Federal judges Mr. Claiborne and Mr. Nixon, what was
interesting, at the time we had a Democrat Majority on the
Judiciary Committee, and they brought forward Articles of
Impeachments. They passed the House. We had managers who
prosecuted them in trial before the Senate. What I find most
interesting is that these judges were prosecuted, and one
standard was used: high crimes and misdemeanors. They said one
standard that applies to the President and Vice President will
also apply to these Federal judges and other civil officers.
Yet now, the President's defenders are arguing Judge
Claiborne's position that his private misconduct does not rise
to the level of an impeachable offense.
You see, in the defense of the Judges Claiborne and Nixon,
the defense lawyers in the trial in the Senate argued that the
Federal judges should be treated differently, that they could
not be impeached for private misbehavior, because it is
extrajudicial. The Democrat Majority at the time rejected that
proposition as incompatible with common sense and the orderly
conduct of government. Federal judges and the President should
be treated by the same standard: impeachment for high crimes
and misdemeanors. Well, I agree. I think the Republicans and
Democrats at the time in the 1980's on both of those cases
agreed and had it right. I think the Judiciary Committee needs
to follow the precedent and be consistent, and that is what we
are trying to do here.
I also want to express my appreciation to Mr. Coble of
North Carolina. Mr. Coble expressed some honesty about his own
personal conscience, about his gut and how it was being turned
over. And I don't believe anyone should make a mockery about
someone describing how they personally feel going through this
process, because it is not easy. So I am going to speak about
my conscience.
You see, I didn't sleep very well last night. So what I did
about 2 a.m. this morning is I went out and took a jog. Now
some may say that may not be a smart thing to do in Washington
at 2 a.m., but I took a jog down the Mall. I first went through
the area of the Korean Memorial. I did that because of my
father, and then I thought of Mr. Conyers, and I thought of
others; I then went over to the Vietnam Memorial, and I walked
slowly. I thought of my days back as a cadet at The Citadel.
There was this officer who was a Vietnam veteran, walked up
to the blackboard, and his name today is Colonel Trez. He was a
young major at the time, carrying the fresh memories of battle.
He walked over and he wrote this statement on the blackboard
and demanded that his young Citadel cadets memorize this
statement. It read, ``Those who serve their country on a
distant battlefield see life in a dimension that the protected
may never know.''
You see, I worked hard to understand what it meant. I
thought I did, but it wasn't until years later that I
understood the real meaning from my military service in the
Gulf War. I had a very dear friend die. I understand the
painful tears, and I understand the horrors of war.
As I jogged back, I stopped at the Washington Monument. The
Mall is beautiful at night. And then I thought about the World
War II veterans, Mr. Hyde and others, a unique generation. They
were truly crusaders. They fought for no bounty of their own.
They left freedom in their footsteps. And then I thought about
something I had read in military history. After D-Day they were
policing up the battlefield and lying upon the battlefield was
an American soldier who was dead. No one was around to hear his
last words, so he wrote them on a pad. Can you imagine the
frustration, knowing you are about to die and there is no one
around to say your last words to? I don't know what you would
write, but this soldier wrote, ``Tell them when you go home, I
gave this day for their tomorrow.'' Of my fallen comrades, if I
permit the eyes of my mind to focus, I can see them. And, if I
permit the ears of my heart to listen, I can hear them. The
echoes of ``do not let my sacrifice be in vain. I fell with the
guidon in my hand. Pick it up and stake it in the high
ground.''
You see, part of my conscience is driven by my military
service. I am an individual that not only is principled, but
also steeped in virtues, and I use them to guide me through the
chaos. Throughout this case, I think about people all across
America, about America's values and the American character, and
I want to put it in plain-spoken words.
I believe we are to defend the Constitution, America's
heritage, and define our Nation's character. So when I think
about America's character and commonsense virtues, I think
about honesty. What is it? Tell the truth; be sincere; don't
deceive, mislead or be devious or use trickery; don't betray a
trust. Don't withhold information in relationships of trust.
Don't cheat or lie to the detriment of others, nor tolerate
such practice. On issues of integrity, exhibit the best in
yourself. Choose the harder right over the easier wrong. Walk
your talk. Show courage, commitment, and self-discipline.
On issues of promise-keeping, honor your oath and keep your
word.
On issues of loyalty, stand by, support and protect your
family, your friends, your community, and your country. Don't
spread rumors, lies, or distortions to harm others. You don't
violate the law and ethical principles to win personal gain,
and you don't ask a friend to do something wrong.
On issues of respect, you be courteous and polite. You
judge all people on their merits. You be tolerant and
appreciative and accepting of individual differences. You don't
abuse, demean, or mistrust anyone. You don't use, manipulate,
exploit, or take advantage of others. You respect the right of
individuals.
On the issues of acting responsibly and being accountable,
think before you act; meaning, consider the possible
consequences on all people from your actions. You pursue
excellence, you be reliable, be accountable, exercise self
control. You don't blame others for your mistakes. You set a
good example for those who look up to you.
On the issue of fairness, treat all people fairly. Don't
take unfair advantage of others, don't take more than your fair
share. Don't be selfish, mean, cruel or insensitive to others.
Live by the Golden Rule.
You see, citizens all across America play by the rules,
obey the laws, pull their own weight; many do their fair share;
and they do so while respecting authority.
I have been disheartened by the facts in this case. It is
sad to have the occupant of the White House, an office that I
respect so much, riddled with these allegations, and now I have
findings of criminal misconduct and unethical behavior. We
cannot expect to restore the confidence in government by
leaving a perjurious President in office.
I yield back my time.
Steve Buyer.
VIII. MINORITY VIEWS
For only the second time in the history of our Nation, the
House is poised to impeach a sitting President. The Judiciary
Committee Democrats uniformly and resoundingly dissent.
We believe that the President's conduct was wrongful in
attempting to conceal an extramarital relationship. But we do
not believe that the allegations that the President violated
criminal laws in attempting to conceal that relationship--even
if proven true--amount to the abuse of official power which is
an historically rooted prerequisite for impeaching a President.
Nor do we believe that the Majority has come anywhere close to
establishing the impeachable misconduct alleged by the required
clear and convincing evidence.
Historian Arthur Schlesinger, appearing before the
Committee on November 9, 1998, explained the grave dangers of
``dumbing-down'' the impeachment process for largely private
misconduct:
Lowering the bar to impeachment creates a novel,
indeed revolutionary theory of impeachment, a theory
that would send us on an adventure with ominous
implications for the separation of owers that the
Constitution established as the basis of our political
order. 1
---------------------------------------------------------------------------
\1\ The Background and History of Impeachment: Hearings on H. Res.
581 Before the Subcomm. On the Constitution, 105th Cong., 2d Sess.
(1998) (Nov. 9, 1998) (``Subcommittee Hearing''), at 96-7.
Impeachment is like a wall around the fort of the
separation of powers fundamental to our constitution; the crack
we put in the wall today becomes the fissure tomorrow, which
ultimately destroys the wall entirely. This process is that
serious. It is so serious the wall was not even approached when
President Lincoln suspended the writ of habeas corpus, nor when
President Roosevelt misled the public in the lend-lease
program, nor when there was evidence that Presidents Reagan and
Bush gave misleading evidence in the Iran-contra affair.
We also note at the outset our profound disagreement with
the process that the Judiciary Committee undertook to report
this resolution. Without any independent examination of fact
witnesses, this Committee essentially rubber-stamped a
September 9th Referral from the Office of Independent Counsel
(OIC). That Referral contained largely unproven allegations
based on grand jury testimony--often inadmissable hearsay
evidence--which was never subject to cross examination. Indeed
the Committee's investigation of this material amounted to
nothing more than simply releasing to the public the Referral
and tens of thousands of accompanying pages of confidential
grand jury material. In this regard, we decry the partisanship
that accompanied this sad three month process at nearly every
turn, and point out its unfortunate departure from the
experience of Watergate in 1974.
There is no question that the President's actions were
wrong, and that he has suffered profound and untold humiliation
and pain for his actions. But it is also undeniable that, when
asked squarely about his relationship with Ms. Lewinsky before
the grand jury, the President directly admitted to the improper
physical relationship. The core of the charges against the
President, thus, is that he did not adequately describe the
intimate details of the relationship, and that his attempts to
conceal his relationship amounted to a criminal conspiracy. Our
review of the evidence, however, convinces us of one central
fact--there is no persuasive support for the suggestion that
the President perjured himself in his civil deposition or
before the grand jury in any manner nearing an impeachable
offense, obstructed justice, or abused the powers of his
office. A few examples will make the point.
The President's statements under oath in the dismissed
Jones case were in all likelihood immaterial to that case and
would never have formed the legal basis for any investigation.
The alleged perjury before the grand jury also involves petty
factual disputes which have no standing as impeachment counts.
The Majority further alleges that the President attempted to
find Ms. Lewinsky a job in order to buy her silence. But the
evidence makes clear that efforts to help Ms. Lewinsky find a
job began in April 1996, long before she ever was identified as
a witness in the Jones case. Ms. Lewinsky herself testified
that ``no one ever asked me to lie and I was never promised a
job for my silence.'' \2\ Likewise, while the Majority contends
that the President tried to hide gifts he had given Ms.
Lewinsky, the evidence makes clear that Ms. Lewinsky--and not
the President--initiated the transfer of those items to the
President's secretary, Ms. Currie. Finally, while the Committee
wisely rejected the abuse of power allegations brought by the
OIC, it then improvidently substituted a spurious new charge of
abuse largely because they did not like the President's tone in
responding to the 81 questions posed by Chairman Hyde.
---------------------------------------------------------------------------
\2\ H.R. Doc. No. 311, infra, at 1393 (reprinting Lewinsky 7/27/98
OIC 302 at 5).
---------------------------------------------------------------------------
In this context, we also point out, that since the election
of President Clinton in 1992, Congressional Republicans and the
OIC have spent tens of millions of dollars of taxpayers' monies
on investigations of the President--investigations which have
been discredited in the eyes of the public. In the process,
Congressional Republicans have perverted the powers of
Congressional investigation into a political weapon, setting a
dangerous precedent for future generations.
Finally, we note that there is virtual unanimity among
Democrats and Republicans that the Senate will not convict
President Clinton, and, thus, that the House is merely using
the extraordinary powers of impeachment to express its
displeasure for presidential actions. We regard this use of the
impeachment sword as a perversion of our Constitutional form of
government and as a dangerous arrogation of power by the
Majority.
The following sets forth an outline of our dissenting
views:
Page
I. The Constitutional Standard for Impeachment has not been satisf203
A. A President May Only Be Impeached for ``Treason, Bribery
or Other High Crimes and Misdemeanors''.................. 205
B. The Appropriate Role of The House In The Impeachment
Process.................................................. 210
II. The misconduct alleged in the articles would never be charged as a
criminal violation.............................................211
A. The Alleged Perjurious Statements Were Immaterial....... 211
B. The Alleged Perjurious Statements Would Never Merit
Prosecution.............................................. 215
III. The articles of impeachment fail to establish impeachable offen218
A. Article I Alleging Perjury Before the Grand Jury Fails
To Establish Impeachable Offenses........................ 218
1. The President Did Not Commit Impeachable Offenses
When Testifying About ``the nature and details of his
relationship with a subordinate Government
employee''........................................... 219
a. The President did not commit an impeachable
offense when testifying about his understanding
of the definition of ``sexual relations''
presented to him during his civil deposition in
the Jones case................................... 219
b. The President did not commit an impeachable
offense when testifying about the nature of his
intimate contacts with Ms. Lewinsky.............. 222
c. The President did not commit an impeachable
offense when testifying about the date on which
his inappropriate contacts with Ms. Lewinsky
began............................................ 226
d. The President did not commit an impeachable
offense when testifying about the number of
occasions on which he was alone with Ms. Lewinsky
and the number of occasions on which they were
having phone sex................................. 227
2. The President Did Not Commit an Impeachable Offense
Testifying About His Prior Testimony In The Jones
Civil Deposition..................................... 228
3. The President Did Not Commit an Impeachable Offense
When His Attorney Characterized the Contents of Ms.
Lewinsky's Affidavit to the Presiding Judge in the
Jones Case........................................... 228
4. The President Did Not Commit An Impeachable Offense
When He Testified About Allegations That He Had
Obstructed Justice................................... 229
B. Article II's Allegations of Perjury In The Jones Civil
Deposition Fail To Establish An Impeachable Offense...... 230
1. The President Did Not Commit An Impeachable Offense
When He Testified about Meeting Alone with Ms.
Lewinsky............................................. 230
2. The President Did Not Commit An Impeachable Offense
When He Testified about Meeting Alone with Ms.
Lewinsky............................................. 232
3. The President Did Not Commit An Impeachable Offense
When He Testified about Gifts He exchanged with Ms.
Lewinsky............................................. 233
4. The President Did Not Commit An Impeachable Offense
When He Testified about Whether He Had Talked with
Ms. Lewinsky about the Possibility She Would Be Asked
to Testify in the Jones Case......................... 238
5. The President Did Not Commit An Impeachable Offense
When He Testified about Whether Ms. Lewinsky Had Told
Him She Had Been Subpoenaed.......................... 239
6. The President Did Not Commit An Impeachable Offense
When He Testified about Who Had Informed Him That Ms.
Lewinsky Had Received a Subpoena in the Jones Case... 240
7. The President Did Not Commit An Impeachable Offense
When He Testified about Whether Anyone Had Reported
to Him about a Conversation with Ms. Lewinsky
Concerning the Jones Case in the Two Weeks Prior to
the Deposition....................................... 241
8. The President Did Not Commit An Impeachable Offense
When He Testified about Whether He Had Heard That Mr.
Jordan and Ms. Lewinsky had Met to Discuss the Jones
Case................................................. 242
C. Article III's allegations of obstruction of justice fail
to establish and impeachable offense..................... 243
1. The President did not encourage Ms. Lewinsky to file
a false affidavit in the Jones case or testify
falsely if deposed in that matter.................... 244
2. The President did not obstruct justice by concealing
gifts that he gave to Ms. Lewinsky................... 246
3. The President did not assist Ms. Lewinsky in
obtaining a job in New York in order to influence her
testimony in the Jones case.......................... 249
4. The President did not commit an impeachable offense
when his counsel characterized Ms. Lewinsky's
affidavit to the presiding judge during the Jones
deposition........................................... 252
5. The President did not relate to Ms. Currie a false
and misleading account of events relevant to the
Jones suit with an intent to influence her testimony
in any legal proceeding.............................. 252
6. The President did not obstruct justice or abuse his
power by denying to his staff his inappropriate
contacts with Ms. Lewinsky........................... 256
D. Article IV Alleging Abuse of Power Fails to Establish An
Impeachable Offenses..................................... 257
IV. The credibility of the impeachment inquiry has been compromised259
A. Bias in OIC Investigation............................... 259
B. Unfairness in Committee Investigation................... 264
1. Unfairness in Conducting Committee Inquiry.......... 264
2. Unfairness in the Drafting of the Articles of
Impeachment.......................................... 267
V. Censure is an Appropriate and Constitutional Alternative to
Impeachment....................................................270
A. Censure Resolution Is Constitutional.................... 273
B. Censure of the President Is Appropriate................. 275
VI. Conclusion.....................................................277
I. The Constitutional Standard for Impeachment Has Not Been Satisfied
Impeachment is only warranted for conduct that constitutes
``Treason, Bribery, or other high Crimes and Misdemeanors'' as
set forth in Article II, Section 4 of the Constitution. As
virtually all constitutional scholars have noted, there is an
important distinction between criminal and impeachable
offenses--impeachment serves to protect the nation, not to
punish the wrongdoer. A review of the language of the
Constitution, the history and drafting of the impeachment
clause, and subsequent review of its usage all serve to confirm
that in all but the most extreme instances, the remedy of
impeachment should be reserved for egregious abuses of
presidential authority, rather than misconduct unrelated to
public office. It is also clear that the President is subject
to civil and criminal punishment independently of the
impeachment process. The constitutional process of impeachment
should not, therefore, be used for punitive purposes.
Members of the Majority have gone to great lengths to
misconstrue the power of impeachment as one that is
appropriately exercised against a chief executive based on any
potentially criminal conduct. This interpretation is flatly
inconsistent with the intentions of the Framers and the prior
presidential impeachments in this country. It also is contrary
to the central conclusions of the Staff Report produced by the
Watergate impeachment inquiry staff in 1974.3
---------------------------------------------------------------------------
\3\ Staff of the House Comm. on the Judiciary, 93d Cong., 2d Sess
(Comm. Print 1974), Constitutional Grounds for Presidential
Impeachment) (hereinafter, ``Watergate Staff Report''). At the November
9, 1998, Constitution Subcommittee Hearing on the Background and
History of Impeachment, Mr. Scott asked the panel whether they agreed
that every felony falls within the definition of ``Treason, Bribery or
other high Crimes and Misdemeanors.'' The record shows that not one of
the 10 panelists agreed that every felony is an impeachable offense.
---------------------------------------------------------------------------
Although many have inaptly compared the present proceedings
to the genuine constitutional crisis brought about by President
Richard Nixon, there are far more dissimilarities than
parallels. In using the powers granted by the Independent
Counsel Act 4 for the first time to justify the
submission of a report to Congress outlining possible
impeachable offenses, the OIC departed from the traditional
deference shown by past presidential prosecutors. As these
other prosecutors have recognized, it is Congress
constitutional responsibility to determine whether alleged
misconduct by a chief executive constitutes grounds for
impeachment. Watergate independent prosecutor Leon Jaworski
submitted grand jury materials to Congress that consisted only
of grand jury transcripts and a ``road map'' through the
allegations being investigated by the grand jury. His report
``provided no analysis and drew no conclusions.'' 5
To this day, that document remains sealed.6
Congress, in short, recognized that only it had the right and
the responsibility to level public charges of impeachable
offenses against the President.
---------------------------------------------------------------------------
\4\ Ethics in Government Act, 28 U.S.C. Sec. Sec. 591-99.
\5\ Linda Greenhouse, Testing of a President, New York Times, Sept.
12, 1998, at 1A.
\6\ Kevin Johnson and Judy Keen, The Case Against the President,
USA Today, Sept. 14, 1998, at 1E.
---------------------------------------------------------------------------
The Committee's constitutional responsibility is quite
distinct from cataloging laws that may have been violated. The
determination of whether to impeach a President is vastly
different than the determination of whether there is evidence
of a legal offense. The Majority, by invoking the language of
criminal statutes to describe the President's alleged
misconduct, directly contradicts one of the main conclusions of
the Watergate Staff Report, which it purports to endorse:
The impeachment of a President must occur only for
reasons at least as pressing as those needs of
government which give rise to the creation of criminal
offenses. But this does not mean that the various
elements of proof, defenses, and other substantive
concepts surrounding an indictable offense control the
impeachment process. Nor does it mean that state or
federal criminal codes are necessarily the place to
turn to provide a standard under the United States
Constitution. Impeachment is a constitutional remedy.
The Framers intended that the impeachment language they
employed should reflect the grave misconduct that so
injures or abuses our constitutional institutions and
form of government as to justify
impeachment.7
---------------------------------------------------------------------------
\7\ Watergate Staff Report at 22.
The assumption that a president's violation of any of a
number of laws may trigger the impeachment provisions of
Article II, Section 4 of the Constitution is fundamentally
misguided. In fact, as virtually all constitutional experts
recognize, not all impeachable offenses are crimes and not all
crimes are impeachable offenses. Again, the 1974 Watergate
---------------------------------------------------------------------------
Staff Report is instructive on this issue:
Impeachment and the criminal law serve fundamentally
different purposes. Impeachment is the first step in a
remedial process--removal from office and possible
disqualification from holding future office. The
purpose of impeachment is not personal punishment; its
function is primarily to maintain constitutional
government . . . The general applicability of the
criminal law also makes it inappropriate as the
standard for a process applicable to a highly specific
situation such as removal of a President. . . . In an
impeachment proceeding a President is called to account
for abusing powers that only a President
possesses.8
---------------------------------------------------------------------------
\8\ Watergate Staff Report at 24.
A. A President May Only Be Impeached for ``Treason, Bribery or Other
High Crimes and Misdemeanors''
With regard to the actual text of the Constitution, the
juxtaposition of such serious offenses of Treason and Bribery
with the phrase ``other high Crimes and Misdemeanors'' serves
as an important indicator of how the latter term should be
defined. In other words, such ``other high Crimes and
Misdemeanors'' must constitute abuses of public office--similar
to treason and bribery--to become impeachable
conduct.9
---------------------------------------------------------------------------
\9\ This reading is an example of the standard rule of construction
known in Latin as ``ejusdem generis,'' or ``of the same kind,''
providing that when a general word occurs after a number of specific
words, the meaning of the general word is limited to the kind or class
of things in which the specific words fall.
---------------------------------------------------------------------------
It also bears emphasis that the word ``high'' modifies both
``Crimes'' and ``Misdemeanors.'' As the history of the latter
term makes clear, the Framers did not entrust Congress with the
power to impeach a popularly elected President simply upon a
showing that the executive committed a ``misdemeanor'' crime as
we now understand the term--a minor offense usually punishable
by a fine or brief period of incarceration. Instead, an
examination of the relevant historical precedents indicates
that a president may only be impeached for conduct that
constitutes an egregious abuse or subversion of the powers of
the executive office.10
---------------------------------------------------------------------------
\10\ The 1974 Watergate Staff Report at 12 wrote, ``Blackstone's
Commentaries on the Laws of England--a work cited by delegates in other
portions of the Convention's deliberations and which Madison later
described (in the Virginia ratifying convention) as `a book which is in
every man's hand'--included `high misdemeanors' as one term for
positive offenses `against the king and government.' . . . `High Crimes
and Misdemeanors' has traditionally been considered a `term of art,'
like such other constitutional phrases as `levying war' and `due
process.' ''
---------------------------------------------------------------------------
It is evident from the legislative history surrounding the
constitutional convention that the Framers intended impeachment
to be a very limited constitutional remedy. At the outset,
delegates such as Governor Morris and James Madison objected to
the use of broad impeachment language. Morris argued that
``corruption & some few other offences to be such as ought to
be impeachable; but thought the cases ought to be enumerated &
defined,'' 11 and Madison noted that impeachment was
only necessary to be used to ``defend[] the Community against
the incapacity, negligence or perfidy of the chief
Magistrate.'' 12
---------------------------------------------------------------------------
\11\ Raoul Berger, Impeachment: The Constitutional Problems, 65
(1973).
\12\ Id. (emphasis added).
---------------------------------------------------------------------------
The critical drafting occurred on September 8, 1787. George
Mason objected to the fact that the draft was too limited
because it applied only to ``treason or bribery'' and sought to
add the term ``maladministration.'' When Madison objected that
``so vague a term will be equivalent to a tenure during
pleasure of the Senate,'' Mason withdrew ``maladministration''
and substituted ``high crimes and misdemeanors agst. the
State,'' which was accepted by the delegates.13 The
narrowness of the phrase ``other high Crimes and Misdemeanors''
was confirmed by the addition of the language ``against the
State,'' reflecting the Convention's view that only offenses
against the political order should provide a basis for
impeachment. Although the phrase ``against the United States''
was eventually deleted by the Committee of Style that produced
the final Constitution,14 the Committee of Style was
directed not to change the meaning of any
provision.15 It is therefore clear that the phrase
was dropped as a redundancy and its deletion was not intended
to have any substantive impact.16
---------------------------------------------------------------------------
\13\ Watergate Staff Report at 11-12.
\14\ 2 Max Farrand, The Records of the Federal Convention of 1781,
551 (Rev. Ed. 1967).
\15\ Id. at 553.
\16\ See Fenton, The Scope of the Impeachment Power, 65 N. W. L.
Rev. 719, 740 (1970).
---------------------------------------------------------------------------
The construction that ``other high Crimes and
Misdemeanors'' should be limited to serious abuses of official
power is further confirmed by the commentary of prominent
Framers and early constitutional commentators. Alexander
Hamilton wrote in Federalist No. 65 that impeachable offenses
``proceed from the misconduct of public men, or in other words
from the abuse or violation of some public trust.'' He stressed
that those offenses ``may with peculiar propriety be
denominated POLITICAL, as they relate chiefly to injuries done
immediately to the society itself.'' 17 Hamilton's
view was endorsed a generation later by Justice Joseph Story in
his Commentaries on the Constitution when he wrote,
``[impeachable offenses] are committed by public men in
violation of their public trust and duties. . .. Strictly
speaking, then, the impeachment power partakes of a political
character, as it respects injuries to the society in its
political character.'' 18 Justice Story added that
impeachable offenses ``peculiarly injure the commonwealth by
the abuse of high offices of trust.'' 19
---------------------------------------------------------------------------
\17\ Alexander Hamilton, The Federalist Papers, 65 (C. Rossiter,
ed., 1991).
\18\ 2 Joseph Story, Commentaries on the Constitution Sec. 744 (1st
ed. 1833) .
\19\ Id.
---------------------------------------------------------------------------
Prior impeachment precedents also demonstrate that, for
offenses to be impeachable, they must arise out of a
president's public, not private, conduct. In 1868, Andrew
Johnson was impeached by the House Republicans because he had
removed the Secretary of War, Edwin M. Stanton, who had
disagreed with his post-Civil War reconstruction
policies.20 Although the impeachment of President
Andrew Johnson failed in the Senate, it bears note that all of
the impeachment articles related to alleged public
misconduct.21
---------------------------------------------------------------------------
\20\ Stanton's removal was said to be inconsistent with the Tenure
in Office Act, requiring Senate approval for removal of certain
officers.
\21\ The eleven articles of impeachment related to Johnson's
removal of Stanton, the impact of that removal on congressional
prerogatives and its impact on post-civil war reconstruction. See Cong.
Globe Supp., 40th Cong. 2d Sess. V. II, at 139-40 (April 23, 1868) and
286-89 (April 29, 1868). See also Cong. Globe Supp., 40th Cong. 2d.
Sess., at 286-310 (1868).
---------------------------------------------------------------------------
The circumstances surrounding the proposed impeachment of
President Nixon also support the view that impeachment should
be limited to threats that undermine the Constitution, not
ordinary criminal misbehavior unrelated to a president's
official duties. All three of the articles of impeachment
approved by the House Judiciary Committee involved misuse of
the President's official duties.22 Even more telling
are the circumstances by which the Committee rejected articles
of impeachment relating to allegations of income tax evasion.
When the Judiciary Committee debated a proposed article of
impeachment alleging that President Nixon had committed tax
fraud when filing his federal income tax returns for the years
1969 through 1972 filed under penalty of perjury 23
it was defeated by a vote of 26-12. Although some Members
believed this count was not supported by the evidence, the
primary ground for rejection was that the Article related to
the President's private conduct, not to an abuse of his
authority as President.24
---------------------------------------------------------------------------
\22\ The First Article--alleging that President Nixon coordinated a
cover-up of the Watergate break-in by interfering with numerous
government investigations, using the CIA to aid the cover-up, approving
the payment of money and offering clemency to obtain false testimony--
qualified as a high Crime and Misdemeanor, because ``[the President
used] the powers of his high office [to] engage . . . in a course of
conduct or plan designed to delay, impede, and obstruct [the Watergate
investigation].'' The Second Article--alleging that the President used
the IRS as a means of political intimidation and directed illegal
wiretapping and other secret surveillance for political purposes--
described ``a repeated and continuing abuse of the powers of the
Presidency in disregard of the fundamental principle of the rule of law
in our system of government.'' The Third Article `` alleging that
President Nixon refused to comply with subpoenas issued by the
Judiciary Committee in its impeachment inquiry--was considered
impeachable because such subpoena power was essential to ``Congress'
[ability] to act as the ultimate safeguard against improper
presidential conduct.''
\23\ The crux of the impeachment article related to allegations
that the President understated his income and overstated his deductions
for the years 1969 through 1972.
\24\ Republican congressmen explicitly emphasized that personal
misconduct could not give rise to an impeachable offense. Congressman
Tom Railsback (R-IL) noted that there was ``a serious question as to
whether something involving [the President's] personal tax liability
has anything to do with his conduct of the office of the President.''
Congressman Lawrence J. Hogan (R-MD), quoted from the impeachment
inquiry staff report:
As a technical term, high crime signified a crime against the
system of government, not merely a serious crime. This element of
injury to the commonwealth, that is, to the state itself and to the
Constitution, was historically the criteria for distinguishing a high
crime or misdemeanor from an ordinary one.
Similarly, Democratic Congressman Jerome Waldie (D-CA) echoed the
Republican distinction between public and private conduct, and opposed
the proposed article because ``the impeachment process is a process
designed to redefine Presidential powers in cases where there has been
enormous abuse of those powers and then to limit the powers as a
concluding result of the impeachment process.''
---------------------------------------------------------------------------
A review of the writings by prominent scholars concerning
the issue of impeachment further confirms the general principal
that for presidential wrongdoing to rise to the level of an
impeachable offense it must relate to grievous abuse of office.
The question of whether private presidential misconduct could
be impeachable was posed twenty-five years ago by Professor
Charles Black, in his seminal work, Impeachment: A Handbook,
when he posited the following hypothetical:
Suppose a President transported a woman across a
state line or even (as the Mann Act reads) from one
point to another within the District of Columbia, for
what is quaintly called an ``immoral purpose.'' . . .
Or suppose the president actively assisted a young
White House intern in concealing the latter's
possession of three ounces of marijuana--thus himself
becoming guilty of ``obstruction of justice.'' Would it
not be preposterous to think that any of this is what
the Framers meant when they referred to ``Treason,
Bribery, or other high Crimes and Misdemeanors,'' or
that any sensible constitutional plan would make a
president removable on such grounds?25
---------------------------------------------------------------------------
\25\ Charles L. Black, Impeachment: A Handbook 35-36 (1974).
More recently, a large group of legal scholars and
academics have offered their views regarding the impeachability
of the misconduct alleged by the Majority. On November 6, 1998,
430 Constitutional law professors wrote: ``Did President
Clinton commit `high Crimes and Misdemeanors' warranting
impeachment under the Constitution? We . . . believe that the
misconduct alleged in the report of the Independent Counsel . .
. does not cross that threshold . . . [I]t is clear that
Members of Congress would violate their constitutional
responsibilities if they sought to impeach and remove the
President for misconduct, even criminal misconduct, that fell
short of the high constitutional standard required for
impeachment.'' 26
---------------------------------------------------------------------------
\26\ Letter from more than 400 Constitutional law professors (Nov.
6, 1998) (submitted as part of the Constitution Subcommittee Hearing
Record).
---------------------------------------------------------------------------
One week earlier, more than four hundred historians issued
a joint statement warning that because impeachment has
traditionally been reserved for high crimes and misdemeanors in
the exercise of executive power, impeachment of President
Clinton based on the facts alleged in the OIC Referral would
set a dangerous precedent. ``If carried forward, they will
leave the Presidency permanently disfigured and diminished, at
the mercy as never before of caprices of any Congress. The
Presidency, historically the center of leadership during our
great national ordeals, will be crippled in meeting the
inevitable challenges of the future.'' 27
---------------------------------------------------------------------------
\27\ Statement Against the Impeachment Inquiry, submitted to the
Committee by more than 400 historians (Oct. 28, 1998)(submitted as part
of the Constitution Subcommittee Hearing Record).
---------------------------------------------------------------------------
The weight of evidence offered at Committee hearings also
supports the view that in all but the most extreme instances,
impeachment should be limited to abuse of public office, not
private misconduct. This point was made by several of the
witnesses at the Constitution Subcommittee Hearing on the
Background and History of Impeachment. Chicago Law Professor
Cass Sunstein, summarized the standard as follows: ``[w]ith
respect to the President, the principal goal of the impeachment
clause is to allow impeachment for a narrow category of large-
scale abuses of authority that come from the exercise of
distinctly presidential powers. Outside of that category of
cases, impeachment is generally foreign to our traditions and
prohibited by the Constitution.'' 28 Professor
Sunstein went on to review English Parliamentary precedent, the
intent of the Framers and subsequent impeachment practice as
all supporting this bedrock principle. In his view, the only
exception where purely private conduct would be implicated was
in the case of a heinous crime, such as murder or rape:
\28\ Subcommittee Hearing, (Written Testimony of Cass Professor
Sunstein at 2) (emphasis in original).
---------------------------------------------------------------------------
[B]oth the original understanding and historical
practice converge on a simple principle. The basic
point of the impeachment provision is to allow the
House of Representatives to impeach the President of
the United States for egregious misconduct that amounts
to the abusive misuse of the authority of his office.
This principle does not exclude the possibility that a
president would be impeachable for an extremely heinous
``private'' crime, such as murder or rape. But it
suggests that outside such extraordinary (and
unprecedented and most unlikely) cases, impeachment is
unacceptable.29
---------------------------------------------------------------------------
\29\ Id. at 5, 7, 8, 11, 12 (emphasis in original).
---------------------------------------------------------------------------
Father Drinan, a former House Judiciary Committee Member
who participated in the Watergate impeachment process, and now
a Professor of Law at Georgetown University, reached the same
conclusion, testifying that, ``the impeachment of a President
must relate to some reprehensible exercise of official
authority. If a President commits treason he has abused his
executive powers. Likewise a President who accepts bribes has
abused his official powers. The same misuse of official powers
must be present in any consideration of a President's engaging
in `other high crimes and misdemeanors.' 30 Eminent
historian Arthur Schlesinger similarly distinguished between
private and public misconduct:
\30\ Id. (Written Testimony of Robert F. Drinan, S.J. at 3-7).
---------------------------------------------------------------------------
The question we confront . . . is whether it is a
good idea to lower the bar to impeachment. The charges
levied against the President by the Independent Counsel
plainly do not rise to the level of treason and
bribery. They do not apply to acts committed by a
President in his role of public official. They arise
from instances of private misbehavior. All the
Independent Counsel's charges . . . derive entirely
from a President's lies about his own sex life. His
attempts to hide personal misbehavior are certainly
disgraceful; but if they are to be deemed impeachable,
then we reject the standards laid down by the Framers
in the Constitution and trivialize the process of
impeachment.31
\31\ Id. (Written Statement of Arthur Schlesinger, Jr. at 2).
---------------------------------------------------------------------------
Prominent witnesses called by the White House concurred in
these assessments. Former Attorney General Nicholas Katzenbach
testified that impeachment must involve ``some conduct--some
acts--which are so serious as to bring into question the
capacity of the person involved to carry out his role with the
confidence of the public'' and noted that it was clear that
``despite the strongly held views of some, the public does not
put perjury about sexual relations in the category of `high
crimes or misdemeanors.' '' 32 Princeton History
Professor Sean Wilentz warned the Committee about the dangers
of a largely partisan impeachment, and warned that ``these
proceedings are on the brink of becoming irretrievably
politicized, more so even than the notorious drive to remove
Andrew Johnson from office one hundred and thirty years ago.''
33
---------------------------------------------------------------------------
\32\ Hearing before the House Comm. on the Judiciary, Dec. 8, 1998
(Statement of Nicholas Katzenbach at 3-4).
\33\ Id. (Written Testimony of Professor Sean Wilentz, at 5).
---------------------------------------------------------------------------
The one witness jointly selected by the Majority and the
Minority--William & Mary Law Professor Michael Gearhardt--also
testified that impeachment should principally be limited to
abuse of public office:
[There is a] widespread recognition that there is a
paradigmatic case for impeachment consisting of the
abuse of power. In the paradigmatic case, there must be
a nexus between the misconduct of an impeachable
official and the latter's official duties. It is this
paradigm that Hamilton captured so dramatically in his
suggestion that impeachable offenses derive from ``the
abuse or violation of some public trust'' and are ``of
a nature which may be peculiar propriety be denominated
POLITICAL, as they relate chiefly to injuries done
immediately to the society itself. This paradigm is
also implicit in the founders' many references to
abuses or power as constituting political crimes or
impeachable offenses.34
---------------------------------------------------------------------------
\34\ Id. (Written Testimony of Professor Michael Gearhardt at 13-
14) (footnotes omitted) (emphasis added).
Even some witnesses called by the Majority cautioned that
discretion should be applied before applying the impeachment
power in all situations. For example, Duke Law Professor
William Van Alstyne stated that the allegations by Mr. Starr
constituted ``low crimes and misdemeanors'' and that ``[t]he
further impeachment pursuit of Mr. Clinton may well not now be
particularly worthwhile.'' 35 Charles E. Wiggins, a
senior judge on the Ninth Circuit, and a former Republican
Member of the Judiciary Committee who participated in the
Watergate inquiry stated, ``I am presently of the opinion that
the misconduct admittedly occurring by the President is not of
the gravity to remove him from office.'' 36
---------------------------------------------------------------------------
\35\ Id. (Written Testimony of Professor William Van Alstyne at 6).
\36\ Hearings before the House Comm. on the Judiciary, ``The
Consequences of Perjury and Related Crimes,'' Dec. 1, 1998 (Written
Testimony of Hon. Charles E. Wiggins).
---------------------------------------------------------------------------
B. The Appropriate Role of The House In The Impeachment Process
It has been repeatedly argued that the House is like a
grand jury that simply votes out an article of impeachment
based on ``probable cause'' to believe that impeachable offense
have occurred and lets the Senate weigh the actual evidence.
This view of the House's role has been offered in support of
the proposition that the House does not have to hear evidence
or make decisions about who is telling the truth because that
is the Senate's job. This cramped view of the appropriate role
of the House finds no support in the Constitution and is
completely contrary to the great weight of historical
precedent. As former Watergate Era Attorney General Elliot
Richardson warned:
A vote to impeach is a vote to remove. If members . .
. believe that should be the outcome, they should vote
to impeach. If they think that is an excessive
sentence, they should not vote to impeach, because if
they do . . . the matter is out of your hands . . .
37
---------------------------------------------------------------------------
\37\ Id. (Written Testimony of Elliott Richardson).
During the debate over the articles of impeachment, Rep.
Frank reminded the Members that they should not take the
House's independent role to remove the President from office
lightly: ``I have to say that I think it is a grave error
constitutionally to denigrate what we are doing. Yes, it is
true that, as a consequence of this, the President will not be
instantly thrown out of office. It is also true that the only
justification and basis for this proceeding and the only basis
on which Members can honestly vote for these articles is the
conviction that the President ought to be thrown out of
office.'' 38
---------------------------------------------------------------------------
\38\ Markup Tr. 12/11/98, at 464.
---------------------------------------------------------------------------
The argument that the House is merely the body that accuses
and the Senate is the body that tries, undermines the dual
protection against misuse of the impeachment power that the
founders intended. The Constitution requires more than that the
House be a mere rubber stamp for sending allegations of
wrongdoing to the Senate; rather Article II intends that the
House as well as the Senate look to the same evidence with the
same standards. As constitutional expert Professor John H.
Labovitz concluded with respect to Watergate, in terms that
seem as if they were written for today;
. . . there were undesirable consequences if the
House voted impeachment on the basis of one-sided or
incomplete information or insufficiently persuasive
evidence. Subjecting the Senate, the President, and the
nation to the uncertainty and potential divisiveness of
a presidential impeachment trial is not a step to be
lightly undertaken. While the formal consequences of an
ill-advised impeachment would merely be acquittal after
trial, the political ramifications could be much more
severe. Accordingly, the house . . . should not vote
impeachments that are unlikely to succeed in the senate
. . . the standard of proof applied in the House should
reflect the standards of proof in the Senate . . .
39
---------------------------------------------------------------------------
\39\ Labovitz, Presidential Impeachments, at 192-3.
Professor Labovitz has meticulously documented how, in the
Nixon inquiry, everyone agreed--the Majority, the Minority, and
the President's counsel--that the standard of proof for the
Committee and the House was ``clear and convincing evidence.''
When the articles of impeachment are weighed against this
standard, it is clear that the constitutional standard has not
been satisfied.
II. The Misconduct Alleged in the Articles Would Never Be Charged As A
Criminal Violation
As discussed above, violations of criminal law are not
sufficient to establish an impeachable offense. Much of the
misconduct alleged in the articles of impeachment could not be
the subject of a successful perjury prosecution and experienced
prosecutors have persuasively testified that the misconduct
alleged in the articles would never be the subject of a
criminal prosecution.
A. The Alleged Perjurious Statements Were Immaterial
Both the Majority's allegation that the President committed
perjury during his grand jury testimony (Article I) and during
his testimony in the Jones case (Article II), are predicated on
the President's efforts to conceal the nature and extent of his
relationship with Ms. Lewinsky. Since so much time of the
Committee was taken up with an examination of whether the
President's conduct violated criminal law (rather than on
whether that conduct amounted to impeachable offenses), some of
the relevant issues of law have to be defined. In considering
whether such conduct constituted a violation of law, the
Committee should have focused on the effect, if any, that this
testimony had on the course of that litigation.40
Accordingly, since the first two Articles are largely based on
the presumed seriousness of the President's failure to admit
the full extent of his inappropriate relationship during his
testimony, the relevance of the testimony must be considered.
---------------------------------------------------------------------------
\40\ A lie under oath becomes a criminal offense only when it is
``material'' to the proceeding in which it is given. Courts have held a
statement to be material if it ``has a natural tendency to influence,
or was capable of influencing, the decision of the tribunal in making a
[particular] determination. Proof of actual reliance on the statement
is not required; the Government need only make a reasonable showing of
its potential effects.'' United States v. Barrett, 111 F.3d 947, 953
(D.C. Cir. 1997) (internal quotation omitted) (brackets in original);
see also United States v. Moore, 613 F.2d 1029, 1037-38 (D.C. Cir.
1979) (same); United States v. Icardi, 140 F. Supp. 383, 388 (D.D.C.
1956) (same).
Significantly, the Supreme Court's recent decision in United States
v. Gaudin, 515 U.S. 506 (1995) strongly suggests the correctness of
this standard. There, the Supreme Court considered the question
whether, under the federal false statements statute, 18 U.S.C.
Sec. 1001, issues of materiality should be decided by the judge or the
jury. In his opinion holding that the issue is for the jury, Justice
Scalia endorsed the view that a statement is material only if it has a
``'natural tendency to influence, or [be] capable of influencing, the
decision of the decisionmaking body to which it was addressed.''
Gaudin, 515 U.S. at 509 (quoting Kungys v. United States, 485 U.S. 759,
770 (1988)) (brackets in original). The Court's interpretation of
Sec. 1001 as embodying a ``capable of influencing'' definition of
materiality should be applied to the perjury statutes, which are very
similar in scope and purpose.
---------------------------------------------------------------------------
Paula Jones was seeking to prove unwelcome and unsolicited
conduct by the President. Whatever else it was, the President's
relationship with Ms. Lewinsky was neither unwanted nor
harassing.41 If the President's testimony under oath
is what supports the allegation of abuse of constitutional
magnitude, then the immateriality of that testimony makes clear
the insufficiency of the Articles recommending impeachment on
that basis.
---------------------------------------------------------------------------
\41\ See Equal Employment Opportunity Statement: Executive Office
of the President; 29 CFR Sec. 1604.11a.
---------------------------------------------------------------------------
Paula Jones, a former Arkansas state employee, filed a
civil lawsuit against the President in 1994 alleging that he
had sexually harassed her during an encounter in a hotel room
during a government conference. After protracted discovery, the
President's motion for summary judgment was granted on the
basis that, even if one assumed the truth of every allegation
made by Jones concerning the President's behavior, Jones failed
to prove that she was entitled to any relief as a matter of
law. In light of this fundamental weakness in Jones' case, it
is exceedingly difficult to establish that the allegedly
misleading statements made by the President during his
testimony were legally ``material'' or ``capable of
influencing'' a court.42 Simply put, Mrs. Jones
would have lost her lawsuit regardless of the President's
deposition testimony.
---------------------------------------------------------------------------
\42\ United States v. Barrett, 111 F.3d 947, 953 (D.C. Cir. 1997).
---------------------------------------------------------------------------
In evaluating the Majority's charge, the rulings made by
Judge Wright in the Jones case must be considered. These are
directly relevant to the question whether the President's
allegedly false statements could possibly be characterized as
violations of the federal law cited by the Referral and relied
upon by the Majority. Judge Wright's order excluding evidence
concerning Ms. Lewinsky, and her order granting the President's
summary judgment motion, clearly establish that any alleged
misleading statements by the President concerning his
indisputably consensual and non-harassing relationship with Ms.
Lewinsky were simply not material matters.
On January 29, 1998, the Independent Counsel intervened in
the Jones case and moved to exclude from that proceeding any
evidence regarding Monica Lewinsky.43 In her order
granting that motion, Judge Wright concluded that evidence
relating to Monica Lewinsky was not ``essential to the core
issues in this case.'' 44 Since Paula Jones' lawyers
would have been precluded from introducing any evidence
relating to Lewinsky to attack the President's credibility, the
President's testimony was not material to the Jones case.
---------------------------------------------------------------------------
\43\ The President's actions in supposedly denying a civil litigant
access to evidence has been frequently cited as one reason that the
President's alleged perjury may constitute an impeachable offense. It
is ironic, therefore, that it was the Independent Counsel's insistence
that the allegations relating to Ms. Lewinsky merited criminal
investigation which actually deprived Mrs. Jones of the ability to
present evidence concerning Monica Lewinsky to the court.
\44\ Judge Wright's order further held that ``some of this evidence
might even be inadmissible as extrinsic evidence under Rule 608(b) of
the Federal Rules of Evidence.'' Jones v. Clinton, No. LR-C-94-290,
Order dated Jan. 29, 1998, at 2. Federal Rule of Evidence 608(b)
governs a party's ability to introduce specific instances of a witness'
prior conduct in order to impeach the witness' credibility. The rule
provides, as a general matter, that a witness' prior conduct may not be
proved by extrinsic evidence. Judge Wright clearly thought it possible
that proof of the President's alleged relationship with Monica Lewinsky
would be inadmissible because, at best, it was relevant only to the
President's credibility. See also Jones v. Clinton, No. LR-C-94-290,
Order dated Mar. 9, 1998, at 2 (denying motion to reconsider order
excluding Lewinsky evidence because ``any evidence concerning Ms.
Lewinsky would be excluded from the trial of this matter'').
---------------------------------------------------------------------------
On April 1, 1998, Judge Wright granted the President's
motion for summary judgment in the Jones case.45 As
required by federal law, in reviewing the President's summary
judgment motion, Judge Wright assessed the evidence in the case
in the light most favorable to Ms. Jones.46
Nevertheless, Judge Wright concluded that no ``rational trier
of fact [could] find for [Ms. Jones],'' and therefore that
there were ``no genuine issues for trial[.]'' 47 The
court's decision undermines the OIC's assumption that the
President's testimony regarding Monica Lewinsky could ever be
material to the resolution of the specific claims that Ms.
Jones made:
---------------------------------------------------------------------------
\45\ Jones v. Clinton, No. LR-C-94-290, Memorandum Opinion and
Order at 10-11 (E.D. Ark. Apr. 1, 1998).
\46\ Id. at 3 n.3.
\47\ Id. at 39.
One final matter concerns the alleged suppression of
pattern and practice evidence. Whatever relevance such
evidence may have to prove other elements of the
plaintiff's case, it does not have anything to do with
the issues presented by the President's . . . motion[]
for summary judgment . . . Whether other women may have
been subjected to workplace harassment, and whether
such evidence has allegedly been suppressed, does not
change the fact that plaintiff has failed to
demonstrate that she has a case worthy of submitting to
a jury.48
---------------------------------------------------------------------------
\48\ Id. at 38-39 (emphasis in original).
---------------------------------------------------------------------------
If Jones' claims failed for lack of proof, nothing the
President said about Ms. Lewinsky could possibly have affected
the outcome of the case.
The presence of Judge Wright during the deposition and her
decision to allow certain questions to be posed does not
suggest, as some have argued, that the President's responses to
those questions were inevitably material to the Jones case.
During a discovery deposition, only questions that are wholly
irrelevant to the underlying action will be disallowed.
Relevance in the discovery stage of civil litigation is an
exceedingly broad standard which is not co-extensive with the
concept of materiality. The Federal Rules of Civil Procedure
provide that discovery may be had on any subject relevant to a
pending case, and that the ``information sought need not be
admissible at the trial if the information sought appears
reasonably calculated to lead to the discovery of admissible
evidence.'' Fed. R. Civ. P. 26(b)(1).49 Courts have
held, however, that the mere fact that testimony was deemed
permissible is not sufficient to establish materiality.
---------------------------------------------------------------------------
\49\ The drafters of the rule further explained that testimony is
proper at a deposition so long as it is part of ``a broad search for
facts, . . . or any other matter which may aid a party in the
preparation or presentation of his case.'' Fed. R. Civ. P. 26, 1946
Advisory Committee Note.
[T]he credibility of a witness is always at issue,
but not every word of a witness' testimony is
invariably material. The materiality of a particular
snippet of testimony is not automatically established
by the simple expedient of proving that the testimony
was given.50
---------------------------------------------------------------------------
\50\ United States v. Adams, 870 F.2d 1140, 1147-48 (6th Cir.
1989).
In sum, not all testimony that a judge permits to be elicited
during a pretrial discovery proceeding can satisfy the
materiality requirement that the information be likely to
influence the outcome of the case.
Some Members of the Majority and the OIC in press releases
that it issued during the course of the Committee's hearings
\51\ have alleged that the materiality of the President's
alleged false statements in Jones v. Clinton has already been
dispositively resolved by the United States Court of Appeals
for the District of Columbia Circuit. \52\ This assertion is
misleading and untrue. The litigation referred to by the OIC
involved a legal challenge by Ms. Lewinsky's lawyer, Frank
Carter, to a subpoena issued by the OIC for testimony and
materials protected by the attorney-client privilege. In
seeking to compel testimony that would ordinarily be protected
by the attorney-client privilege, the OIC argued that it had
reason to believe that the attorney-client relationship had
been exploited to facilitate the filing of a false affidavit,
which would permit ordinarily privileged material to be
disclosed pursuant to the ``crime-fraud'' exception. In
opposing this subpoena to her former attorney, Ms. Lewinsky
argued that her affidavit related to matters later excluded
from the Jones case and, therefore, was not ``material'' to
that proceeding, thereby rendering the truth or falsity of her
affidavit legally irrelevant. The D.C. Circuit, in rejecting
this argument, did not hold that Ms. Lewinsky's affidavit was
relevant to the underlying Jones litigation. Instead, the Court
arrived at the much narrower ruling that Ms. Lewinsky's
affidavit was relevant to her motion to quash her own subpoena.
\51\ The practice of the OIC to continue to speak publicly and to
issue press releases after it made its' 595(c) Referral to Congress
bears note. This report points out the bias, impartiality, and
``attitude'' with which the Referral was written. The fact that the OIC
continued to feel the need to defend itself against all possible
criticisms--large and small--demonstrates that it was indeed too vested
and partial in this entire event.
\52\ Appendices to the Referral (Part 1) H. Doc. 103-311 at 294.
---------------------------------------------------------------------------
Lewinsky used the statement in her affidavit . . . to
support her motion to quash the subpoena issued in the
discovery phase of the Arkansas litigation. . . . There
can be no doubt that Lewinsky's statements in her
affidavit were . . . predictably capable of affecting
this decision. She executed and filed her affidavit for
this very purpose. \53\
---------------------------------------------------------------------------
\53\ In re Sealed Case, slip op. at 4-6 (D.C. Cir., Nos. 98-3052,
98-3053, 98-3059, May 26, 1998).
That Ms. Lewinsky's affidavit was material to her own
motion to quash is not surprising, but that holding does not
compel the conclusion that the President's testimony concerning
Ms. Lewinsky was material to the Jones case. It is a disservice
to the state of the record to suggest that the important
threshold question of materiality has been conclusively
resolved by the D.C. Circuit. Most importantly, as the Majority
has argued time and time again, these are not legal
proceedings. Although scholars differ about the materiality
issue, it cannot be denied that the President's allegedly false
statements played no actual role in depriving Ms. Jones of any
relief she was seeking as a civil litigant. To the contrary,
the negative publicity created by both her case and the OIC's
involvement in her civil discovery processes may well led the
President to offer her a generous settlement despite the
decision dismissing her claims. These are legitimate, common-
sense considerations which should have weighed more heavily in
this Committee's deliberations about the gravity of the
offenses alleged. When Judge Webber Wright ruled on April 1
that no matter what the President did with Ms. Lewinsky, Paula
Jones herself had not proven that she had been harmed, the
court's opinion confirmed that the President's statements,
whether truthful or not, were not of the grave constitutional
significance necessary to support impeachment.
B. The Alleged Perjurious Statements Would Never Merit Prosecution
On December 9, 1998, a panel of five highly regarded former
Democratic and Republican federal prosecutors appeared before
the Committee and testified that the OIC's case against the
President would not have been pursued by a responsible federal
prosecutor. It stood to reason, therefore, that if lawyers
could agree that the President's conduct would not even merit a
criminal prosecution under ordinary circumstances, how could
lawmakers in Congress conclude that it amounted to a ``high
crime?'' The bi-partisan panel consisted of:
Richard J. Davis, former task force leader for the
Watergate Special Prosecution Force, and former
Assistant Secretary of the Treasury for Enforcement and
Operations;
Edward S.G. Dennis, Jr., former Acting Deputy
Attorney General of the United States, former Assistant
Attorney General for the Criminal Division of the
Department of Justice, and former United States
Attorney for the Eastern District of Pennsylvania;
Ronald K. Noble, former Under Secretary for
Enforcement of the Department of the Treasury, former
Deputy Assistant Attorney General of the United States,
and former Assistant United States Attorney for the
Eastern District of Pennsylvania;
Thomas P. Sullivan, former United States Attorney for
the Northern District of Illinois; and
William F. Weld, former Governor of Massachusetts,
former Assistant Attorney General in charge of the
Criminal Division of the Department of Justice, former
United States Attorney for the District of
Massachusetts, and House Judiciary Committee Counsel
during Watergate.
In his testimony, Mr. Sullivan told the Committee that
federal prosecutions for perjury and obstruction of justice are
relatively rare, in part, because they are extremely difficult
to prove. \54\ He explained that the law of perjury ``can be
particularly arcane, including the requirements that the
government prove beyond a reasonable doubt that the defendant
knew his testimony to be false at the time he or she testified,
that the alleged false testimony was material, and that any
ambiguity or uncertainty about what the question or answer
meant must be construed in favor of the defendant.'' \55\ He
further stated that, as a general matter, ``[f]ederal
prosecutors do not use the criminal process in connection with
civil litigation involving private parties.'' \56\ That is
because ``there are well established remedies available to
civil litigants who believe perjury or obstruction has
occurred.'' \57\ Mr. Sullivan testified that ``the evidence set
out in the Starr report would not be prosecuted as a criminal
case by a responsible federal prosecutor.'' \58\
---------------------------------------------------------------------------
\54\ 12/9/98 Tr. at 14-15.
\55\ 12/9/98 Tr. at 15.
\56\ 12/9/98 Tr. at 15.
\57\ 12/9/98 Tr. at 16.
\58\ 12/9/98 Tr. at 17.
---------------------------------------------------------------------------
Mr. Davis testified that in ``making a prosecution decision
as recognized by Justice Department policy, the initial
question for any prosecutor is, can the case be won at trial?
Simply stated, no prosecutor should bring a case if he or she
does not believe that based upon the facts and the law, it is
more likely than not that they will prevail at trial.'' \59\
Mr. Davis added that ``[c]ases that are likely to be lost
cannot be brought simply to make a point, to express a sense of
moral outrage, however justified such a sense of outrage might
be.'' \60\ Like Mr. Sullivan, Mr. Davis noted that perjury
cases are difficult to prosecute because ``questions and
answers are often imprecise.'' \61\
---------------------------------------------------------------------------
\59\ 12/9/98 Tr. at 24.
\60\ 12/9/98 Tr. at 24.
\61\ 12/9/98 Tr. at 24.
---------------------------------------------------------------------------
Significantly, Mr. Davis noted that in civil lawsuits,
``lawyers routinely counsel their clients to answer only the
question asked, not to volunteer and not to help out an
inarticulate questioner.'' \62\ Based on his review of the
OIC's evidence, Mr. Davis concluded that there does not exist a
prosecutable case of perjury against the President arising out
of his grand jury testimony. That is because the President
``acknowledged to the grand jury the existence of an improper
relationship with Monica Lewinsky, but argued with prosecutors
questioning him that his acknowledged conduct was not a sexual
relationship as he understood the definition of that term being
used in the Jones deposition.'' \63\ Put another way, Mr. Davis
testified that it would not be possible to prove that the
President perjured himself about his subjective understanding
of the definition of ``sexual relations'' drafted by the Jones
attorneys.
---------------------------------------------------------------------------
\62\ 12/9/98 Tr. at 24.
\63\ 12/9/98 Tr. at 26.
---------------------------------------------------------------------------
Mr. Dennis testified that a criminal conviction of the
President ``would be extremely difficult to obtain in a court
of law'' because there ``is very weak proof of the criminal
intent of the President.'' \64\ In addition, Mr. Dennis told
the Committee that the ``Lewinsky affair is of questionable
materiality to the proceedings in which it was raised.'' \65\
According to Mr. Dennis, perjury and obstruction of justice
cases arising out of civil litigation involving private parties
are ``rare,'' and ``rarer still are criminal investigations in
the course of civil litigation in anticipation of incipient
perjury or obstruction of justice.'' \66\ That is because in
the latter circumstances, ``prosecutors are justifiably
concerned about the appearance that government is taking the
side of one private party against another.'' \67\ Under the
facts of the Jones case, Mr. Dennis testified that a criminal
prosecution was not warranted and ``most likely would fail.''
\68\ He concluded that ``[c]ertainly the exercise of sound
prosecutorial discretion would not dictate prosecuting such a
case.'' \69\
---------------------------------------------------------------------------
\64\ 12/9/98 Tr. at 32.
\65\ 12/9/98 Tr. at 32.
\66\ 12/9/98 Tr. at 33.
\67\ 12/9/98 Tr. at 33.
\68\ 12/9/98 Tr. at 34.
\69\ 12/9/98 Tr. at 34.
---------------------------------------------------------------------------
Mr. Noble testified that ``a Federal prosecutor ordinarily
would not prosecute a case against a private citizen based on
the facts set forth in the Starr referral.''\70\ He explained
that ``Federal prosecutors and Federal agents, as a rule, ought
to stay out of the private sexual lives of consenting adults.''
\71\ Like his colleagues, Mr. Noble agreed that as a general
matter ``Federal prosecutors are not asked to bring Federal
criminal charges against individuals who have allegedly
perjured themselves in connection with civil lawsuits.'' \72\
That is because ``[b]y their nature, lawsuits have remedies
built into the system. Lying litigants can be exposed to such
and lose their lawsuits. The judge overseeing the lawsuit is in
the best position to receive evidence about false statements,
deceitful conduct and even perjured testimony.'' \73\ Mr. Noble
also testified that ``[n]o prosecutor would be permitted to
bring a prosecution where she believed that there was no chance
that an unbiased jury would convict[,]'' and for that reason
urged the Committee to ``consider the impact that a long and no
doubt sensationalized trial will have on the country,
especially a trial that will not result in a conviction.'' \74\
---------------------------------------------------------------------------
\70\ 12/9/98 Tr. at 35.
\71\ 12/9/98 Tr. at 39.
\72\ 12/9/98 Tr. at 41.
\73\ 12/9/98 Tr. at 41.
\74\ 12/9/98 Tr. at 45.
---------------------------------------------------------------------------
Finally, Governor Weld testified that in the Reagan
Administration, it was not the policy of the Department of
Justice ``to seek an indictment based solely on evidence that a
prospective defendant had falsely denied committing unlawful
adultery or fornication.'' 75 He also testified that
under settled principles of federal prosecution, ``the
prosecutor has to believe that there is sufficient evidence,
admissible evidence, to obtain from a reasonable and unbiased
jury a conviction and to sustain it on appeal'' before a
decision is made to bring a charge against a potential
defendant.76
---------------------------------------------------------------------------
\75\ 12/9/98 Tr. at 48.
\76\ 12/9/98 Tr. at 81.
---------------------------------------------------------------------------
Thus, the former federal prosecutors agreed on a number of
points. First, they agreed that the criminal law generally is
not used to sanction misbehavior that occurs during civil
litigation. As Mr. Sullivan explained, ``the thrust of what I
am saying is that the Federal criminal process simply is not
used to determine truth or falsity in statements in civil
litigation, and it is particularly true--I mean, that's true,
and it is also even more true when you take a situation, as you
have here, that the testimony is even peripheral to the civil
case involved.'' 77 Second, they concurred that
testimony concerning the President's relationship with Ms.
Lewinsky was not material to the Jones lawsuit. Mr. Dennis
testified that the ``Lewinsky affair is of questionable
materiality to the proceedings in which it was raised.''
78 Third, the panelists agreed that the OIC's case
against the President likely could not be sustained in court.
As Mr. Noble put it, ``I think that it is fairly clear, and
that if a poll were taken of former U.S. attorneys from any
administration, you would probably find the overwhelming number
of them would agree with the assessment that this case is a
loser and just would not be sustained in court.'' 79
---------------------------------------------------------------------------
\77\ 12/9/98 Tr. at 58.
\78\ 12/9/98 Tr. at 32.
\79\ 12/9/98 Tr. at 59.
---------------------------------------------------------------------------
Fourth, the former prosecutors agreed that the charge of
obstruction of justice against the President arising out of his
conversations with Betty Currie was weak. In the words of
Governor Weld, ``I think it [the case for obstruction] is a
little thin.'' 80 And finally, they agreed that a
charge should not be brought against a defendant unless it can
be sustained at trial. As Mr. Sullivan remarked, ``I have had
situations where my . . . [law enforcement] agents have said to
me after discussion about the evidence--and we concluded that
we cannot get a conviction or it is likely that we will lose--
let's indict him anyway to show him. My response to that is,
get out of my office and never come back.'' 81
---------------------------------------------------------------------------
\80\ 12/9/98 Tr. at 75.
\81\ 12/9/98 Tr. at 81.
---------------------------------------------------------------------------
III. The Articles of Impeachment Fail to Establish Impeachable Offenses
A. Article I Alleging Perjury Before the Grand Jury Fails To Establish
Impeachable Offenses
The Committee has approved an article of impeachment
concerning the President's grand jury testimony which alleges
perjurious testimony with respect to the following subject
matters: ``(1) the nature and details of his relationship with
a subordinate Government employee; (2) prior perjurious, false
and misleading testimony he gave in a Federal civil rights
actions brought against him; (3) prior false and misleading
statements he allowed his attorney to make to a federal judge
in that civil rights action; and (4) his corrupt efforts to
influence the testimony of witnesses and to impede the
discovery of evidence in that civil actions.''
1. The President Did Not Commit Impeachable Offenses When Testifying
About ``the nature and details of his relationship with a
subordinate Government employee''
Specific details of the allegedly perjurious statements
described by this subparagraph were not included in the
articles. In the absence of such specifics, the Minority has no
choice but to presume that the Committee intends to parrot the
allegations of grand jury perjury contained in the OIC's
Referral. The Referral alleged that the President perjured
himself in his grand jury testimony by responding to questions
concerning the physical nature of his relationship with Ms.
Lewinsky in the following ways:
The President testified that he understood the
definition of ``sexual relations'' given to him in the
Jones deposition not to include oral sex performed on
him.
The President asserted that his admittedly intimate
contacts with Ms. Lewinsky did not constitute ``sexual
relations'' as the President testified he understood
that term to be defined in the Jones deposition.
The President testified that his physical
relationship with Ms. Lewinsky did not begin until
early 1996, rather than late 1995, as recalled by Ms.
Lewinsky.
The Majority Counsel, in his presentation, additionally
alleged that the President testified falsely to the grand jury
concerning the following issues:
The exact number of the President's meetings with Ms.
Lewinsky.
The exact number of his telephone conversations with
Ms. Lewinksy that included sexual banter.
This Committee has not been presented with clear and
convincing evidence that the President's testimony on any of
subjects was intentionally false. More importantly, there is no
real prospect that a Senate trial would ever find sufficient
evidence to convict the President of impeachable offenses based
on these allegations.
(a) The President did not commit an impeachable offense
when testifying about his understanding of the
definition of ``sexual relations'' presented to him
during his civil deposition in the Jones case
It is alleged that the President falsely testified before
the grand jury that he genuinely believed that the definition
of ``sexual relations'' presented to him in the Jones case did
not include oral sex. This charge turns, of course, on the
nearly impossible task of demonstrating that the President's
was not testifying truthfully about his subjective
understanding of a complicated and abstract legal definition of
``sexual relations'' presented to him for the first time on the
day of the Jones deposition and modified by the presiding judge
in response to the President's objections.
At the beginning of the Jones deposition, the President was
presented with the following definition of sexual relations:
For the purposes of this deposition, a person engages
in ``sexual relations'' when the person knowingly
engages in or causes--
(1) contact with the genitalia, anus, groin, breast,
inner thigh, or buttocks of any person with an intent
to arouse or gratify the sexual desire of any person[.]
(2) contact between any part of the person's body or
an object and the genitals or anus of another person;
or (3) contact between the genitals or anus of the
person and any part of another person's body.
``Contact'' means intentional touching, either
directly or through clothing.
The proposed use of this definition by the Jones attorney
drew heated and protracted objections based on its ambiguous
wording and the potential for confusion. The President's
lawyer, Robert Bennett, argued: ``I think this could really
lead to confusion, and I think it's important that the record
be clear . . . I do not want my client answering questions not
understanding exactly what these folks are talking about.''
82 Counsel for the President's co-defendant, former
Arkansas trooper Danny Ferguson, also objected. ``Frankly, I
think it's a political trick [the definition], and I've told
you [Judge Wright] before how I feel about the political
character of this lawsuit.'' 83 The President's
counsel invited the Jones attorneys to questions the President
directly about his conduct regardless of the embarrassing
nature of the questions. ``Why don't they ask him about what
happened or what didn't happen?'' In retrospect, these
objections were especially well-taken since we now know that
Jones's attorneys had been extensively debriefed the previous
evening by Ms. Lewinsky's confidante, Linda Tripp. Judge
Wright, in response to these objections, amended the definition
by striking subparts (2) and (3), allowing only subpart (1) to
stand. When the plaintiff's attorneys sought to introduce
another convoluted definition, Judge Wright, apparently
regretting her previous ruling permitting the earlier use of
such definitions during questioning, rejected the plaintiff's
additional proposed definition due to its confusing nature, and
concluded: ``I'm not sure Mr. Clinton knows all these
definitions, anyway.'' 84 When the President was
later asked by the Jones attorneys whether his contacts with
Ms. Lewinsky fit within their tortured definition of sexual
relations, he understandably denied that this was
so.85
---------------------------------------------------------------------------
\82\ Clinton 1/17/98 Depo at 20.
\83\ Clinton 1/17/98 Depo at 20.
\84\ Clinton 1/17/98 Depo at 25.
\85\ Clinton 1/17/98 Depo at 78.
---------------------------------------------------------------------------
During the President's August 17, 1998 grand jury
testimony, the OIC prosecutor returned to this topic and asked
whether the President regarded oral sex as falling within the
definition provided to him in the Jones deposition.
Q: [I]s oral sex performed on you within the
definition as you understood it, the definition in the
Jones . . .
As I understood it, it was not; no.86
---------------------------------------------------------------------------
\86\ Clinton 8/17/98 GJ at 93.
The President was consistent in his interpretation that sexual
relations are distinct from oral sex, and, thus, that his
physical relations with Ms. Lewinsky did not meet the
definition provided in the Jones case. For example, he
testified that when he was presented with the definition in the
Jones case he was very uncomfortable because he had to
acknowledge that, in one instance, he had engaged in conduct
---------------------------------------------------------------------------
that met the definition of ``sexual relations'':
All I can tell you is, whatever I thought was covered, and
I thought about this carefully. And let me just point out, this
was uncomfortable for me. I had to acknowledge, because of this
definition, that under this definition I had actually had
sexual relations with Gennifer Flowers, a person who had spread
all kinds of ridiculous, dishonest, exaggerated stories about
me for money. And I knew when I did that, it would be leaked.
It was. And I was embarrassed. But I did it.
* * * * * * *
Let me remind you, sir, I read this carefully. And I
thought about it. I thought about what ``contact'' meant. I
thought about what ``intent to arouse or gratify'' meant. And I
had to admit under this definition that I'd actually had sexual
relations with Gennifer Flowers. Now, I would rather have taken
a whipping than done that, after all the trouble I'd been
through with Gennifer Flowers 87
---------------------------------------------------------------------------
\87\ Clinton 8/17/98 GJ at 150.
The lawyers in the Jones deposition simply did not ask the
question most relevant to uncovering the nature of the physical
contact between the President and Ms. Lewinsky. The world now
knows why these attorneys asked the questions couched in the
definitions they invented. They were, in fact, trying to create
the very chaos and confusion that has occurred. They were not
seeking information; they already had it from Linda Tripp. What
they were seeking was to set the President up. If they had
asked real questions, seeking real information, and had raised
specific conduct, we might have avoided this charge in the
Referral entirely. The President testified that he had no
intention of avoiding a question regarding oral sex; he just
---------------------------------------------------------------------------
wasn't asked about it:
Q. Would you have been prepared, if asked by the
Jones lawyers, would you have been prepared to answer a
question directly about oral sex performed on you by
Monica Lewinsky?
A. If the Judge had required me to answer it, of
course, I would have answered it. And I would have
answered truthfully. . . . 88
---------------------------------------------------------------------------
\88\ Clinton 8/17/98 GJ at 151.
There is no evidence of intent on the President's part to
commit perjury in his grand jury appearance--the President
simply explained and re-explained his interpretation of the
definition of sexual relations provided to him by the lawyers
in the Jones case.
When a question is ``fundamentally ambiguous,'' the answers
to the questions posed are insufficient as a matter of law to
support a perjury conviction. 89 Simply put, when
there is more than one way of understanding the meaning of a
question, and the witness has answered truthfully as to his
understanding, he cannot commit perjury.
---------------------------------------------------------------------------
\89\ See, e.g., United States v. Finucan, 708 F.2d 838, 848 (1st
Cir. 1983); United States v. Lighte, 782 F.2d 367, 375 (2d Cir. 1986);
United States v. Tonelli, 577 F.2d 194, 199 (3d Cir. 1978); United
States v. Bell, 623 F.2d 1132, 1337 (5th Cir. 1980); United States v.
Wall, 371 F.2d 398, 400 (6th Cir. 1967); United States v. Williams, 552
F.2d 226, 229 (8th Cir. 1977).
---------------------------------------------------------------------------
Even assuming, for the sake of argument, that the
President's definition of sexual relations is too narrow, even
in the context of the Jones deposition, the record shows at
most that the President may have been mistaken in construing
the definition too narrowly, not that he intended to lie. It is
well established that inaccurate or false testimony which is
provided as a result of confusion or mistake cannot form the
basis for a perjury charge.90
---------------------------------------------------------------------------
\90\ See United States v. Dunnigan, 507 U.S. 87, 94 (1993):
Department of Justice Manual, at 9-69.214 (Supp. 1997).
---------------------------------------------------------------------------
(b) The President did not commit an impeachable offense
when testifying about the nature of his intimate
contacts with Ms. Lewinsky
Article I also appears to encompass the allegation that the
President testified falsely when he denied during his grand
jury testimony that his intimate physical contact with Ms.
Lewinsky fell within the definition presented to him in the
Jones deposition. We do not believe that the constitutional
responsibilities of this Committee compel a detailed
regurgitation of the salacious details concerning the alleged
physical contact between the President and Ms. Lewinsky.
Considerations of personal privacy and institutional dignity
must hold some sway in this process, especially where this
factual question, even if dispositively resolved against the
President, cannot merit his impeachment.
In a prolonged Senate trial, additional evidence could
conceivably be amassed concerning the intimate details of the
physical relationship between the President and Ms. Lewinsky,
but that is not necessary. The President's alleged
misstatements about this matter would not warrant the inquiry
suggested by the Majority. These were statements made in a
civil case that was based on allegations of sexual harassment,
not consensual sexual relationships; these were statements made
under a very narrow and confusing definition of ``sexual
relations;'' and these were statements not material to the
decision in the case. In the end, these statements denying an
improper relationship were made with the primary purpose of
attempting to conceal what the President himself has
acknowledged was a serious lapse of judgment concerning a
private matter, rather than a corrupt attempt to impede the
administration of justice.
It is equally important to note that the evidence does not
provide clear and convincing proof that the President has
testified in an intentionally false manner concerning the
nature of his intimate contacts with Ms. Lewinsky. Article I
rests on the OIC's untenable assumption that there is no
possibility that Ms. Lewinsky's memory is inaccurate or that
she was, to some extent, untruthful. As the Referral states:
``There can be no contention that one of them has a lack of
memory or is mistaken.'' 91 Independent Counsel
Starr at his November 19, 1998 appearance before the Committee
all but stated that Ms. Lewinsky was not to be believed on a
variety of issues (e.g., whether she was denied a chance to
call her attorney when she was first confronted, whether she
was asked to wear a wire to tape record Vernon Jordan and the
President, and whether she really believed that ``no one asked
her to lie, and no one promised her a job for her silence'').
The OIC then reiterated the same lack of confidence in Ms.
Lewinsky in its December 11, 1998 written responses to the
Committee's questions following his November 19 appearance,
repeatedly asserted that Ms. Lewinsky's grand jury testimony
concerning the conduct of OIC prosecutors was false. For
example, the OIC denied the truthfulness of Ms. Lewinsky's
sworn testimony that she had been threatened with a jail
sentence of 27 years, that her mother had been threatened with
prosecution, and that she had been asked to secretly tape
record conversations with Betty Currie, Vernon Jordan and
possibly the President. As Rep. Watt asked during his
questioning of the Independent Counsel, ``how are you picking
and choosing what you believe from Ms. Lewinsky?''
92
---------------------------------------------------------------------------
\91\ Referral at 148.
\92\ 11/19/98 Hearing Tr. at 236.
---------------------------------------------------------------------------
More specifically, the record is replete with evidence that
Ms. Lewinsky's memory, standing alone, does not constitute
clear and convincing evidence on the disputed issues of fact
concerning her intimate contacts with the President. If the
House is going to discharge its constitutional responsibilities
to send charges to the Senate only upon ``clear and
convincing'' evidence, it must review the contradictions in the
record with respect to Ms. Lewinsky. This is especially true
with respect to times that Ms. Lewinsky was contemporaneously
describing ``the nature and details'' of her relationship with
the President to her friends and acquaintances--the very issue
about which a trial in the Senate would have to occur. However,
the Minority has been seeking, and continues to seek to avoid
entirely, any further inquiry into these matters and thereby
spare Ms. Lewinsky further personal embarrassment. That is why
it has pointed out that the immateriality of these allegedly
false statements concerning these matters is dispositive of the
issue.
As a general matter, the Independent Counsel's Referral
acknowledges (albeit in a footnote) that Ms. Lewinsky has
certain credibility problems due to ``her perjurious Jones
affidavit, her efforts to persuade Linda Tripp to commit
perjury, her assertion in a recorded conversation that she had
been brought up to regard lying as necessary, and her forgery
of a letter while in college. 93 As a result, the
Independent Counsel placed great weight on statements made by
Ms. Lewinsky to her confidantes concerning the nature and
character of her physical contacts with the President.
94 Indeed, on the narrow factual question in dispute
concerning the exact nature of their physical contacts, Ms.
Lewinsky's contemporaneous statements to her associates are the
only corroborating evidence offered for Ms. Lewinsky's account.
A more detailed examination of the record reveals, however,
that the mere fact that, on more than one occasion, Ms.
Lewinsky volunteered information to friends about the details
of her relationship with the President is not a reliable
indicator of the truthfulness of that information.
---------------------------------------------------------------------------
\93\ Referral at 12, n. 8.
\94\ Referral at 13.
---------------------------------------------------------------------------
For example, Ms. Lewinsky confided to her friend, Kathleen
Estep, on one occasion, that the President was brought to her
apartment at 2:00 a.m. by the Secret Service. 95 Not
only did Ms. Estep conclude that Ms. Lewinsky was lying to her
about this incident, but the OIC found no evidence that such a
visit had occurred. 96 Similarly, Ms. Lewinsky told
her friend, Dale Young, that she had recorded some of the
President's late night telephone calls to her. 97 No
such recordings were ever recovered and Ms. Lewinsky never told
the OIC about such recordings during her extensive debriefings
with them. When interviewing for a job in New York, Ms.
Lewinsky told one of her interviewers that she had lunch with
Hillary Clinton the previous week and that the First Lady had
offered to help Ms. Lewinsky find an apartment in New York.
98 It was the impression of the interviewer that
``Lewinsky's comments strained credulity.'' 99
---------------------------------------------------------------------------
\95\ Estep 8/23/98 302 at 3.
\96\ Estep 8/23/98 302 at 3.
\97\ Young 6/23/98 GJ at 48.
\98\ Nancy Ridson 1/26/98 302.
\99\ Nancy Ridson 3/27/98 302.
---------------------------------------------------------------------------
Ms. Lewinsky also offered untruthful details to her friends
about the nature of her intimate contacts with the President.
For example, Ms. Lewinsky told a friend about a sexual
encounter with the President where she was fully unclothed
100, but told the grand jury that neither she nor
the President ever fully disrobed. 101 Ms. Lewinsky
told both Ashley Raines and Linda Tripp that her sexual
relations with the President included, on occasion ``reciprocal
oral sex.'' 102 Ms. Lewinsky told the grand jury,
however, that she never received oral sex from the President.
103
---------------------------------------------------------------------------
\100\ Erbland 2/12/98 GJ at 26 (``She told me that she had given
him [oral sex] and she had had all of her clothes off, . . ''),
\101\ ``[N]either of us ever really took--completely took off any
piece of our clothing, I think specifically because of the possibility
of encounters . . .'' Lewinsky 8/26/98 GJ at 43-44.
\102\ Raines 1/25/98 302 at 1; Tripp 7/2/98 GJ at 101.
\103\ Lewinsky 8/6/98 GJ at 19.
---------------------------------------------------------------------------
These conflicting accounts are all the evidence available
to the Committee on this narrow issue. It is not necessary to
conclude, however, that either Ms. Lewinsky or the President is
intentionally falsifying their respective accounts of their
intimate contacts. The record before us suggests that
recollections can vary according to the witness' perspective.
For example, Ms. Lewinsky testified before the grand jury that
she ``does not have a memory'' of how she ``made it clear that
she intended to deny'' the sexual relationship with the
President (as she said in her proffer), but insists she was
telling the truth at the time she wrote that.104 In
a remarkable exchange, the OIC prosecutors suggested that one
reason for her inability to remember may be her guilt over
getting Jordan in trouble:
---------------------------------------------------------------------------
\104\ Lewinsky 8/6/98 GJ at 178-79.
---------------------------------------------------------------------------
Q. But--and I think you also said you feel some--I
don't know if this is the reason you don't remember it,
but--you have expressed to us that you feel some guilt
about Vernon Jordan. Is that correct?
A. Yes.
Q. Okay. Can you tell us why that is?
A. He was the only person who did what he said he was
going to do for me and--in getting me the job. And when
I met with Linda on the 13th, when she was wearing a
wire, and even in subsequent or previous conversations
and subsequent conversations, I attributed things to
Mr. Jordan that weren't true because I knew that it had
leverage with Linda and that a lot of those things that
I said got him into a lot of trouble and I just--he's a
good person.105
---------------------------------------------------------------------------
\105\ Lewinsky 8/6/98 GJ at 179-180.
---------------------------------------------------------------------------
This is not the only failure of Ms. Lewinsky's recollection
concerning Mr. Jordan. For example, Ms. Lewinsky told the OIC
in an interview that she never explained to Jordan what phone
sex was, but testified in her grand jury appearance that she
did.106 The OIC's indulgence of the memory lapses of
its star witness on a key point in her proffer does not strike
the Minority as wholly unreasonable. Instead, the Independent
Counsel gave Ms. Lewinsky the benefit of the doubt based on the
apparent assumption that recollections can honestly fail
concerning subjects that cause the witness emotional
pain.107 On the basis of the record before us,
particularly in light of the gravity of this impeachment
proceeding, every consideration should also be given to the
possibility that the differing recollections of the President
and Ms. Lewinsky may be colored by their differing emotional
perspectives concerning the intimate events at issue. As Ms.
Lewinsky testified before the grand jury, the President's
description of the limited nature of their physical contacts
was interpreted by her as a repudiation of the emotional
component of their relationship that reduced it to a mere
``service contract.'' 108 It is incumbent on us to
consider the possibility that her emotional perspective could
lead a mistaken but good-faith recollection about the nature of
their contacts.
---------------------------------------------------------------------------
\106\ See Lewinsky 8/6/98 GJ at 143; cf. Lewinsky 8/1/98 OIC 302 at
8; Lewinsky 7/27/98 OIC 302 at 9.
\107\ In his testimony before the Committee, Independent Counsel
Starr reiterated that people can have different perceptions about these
kinds of events without one being called a liar.
\108\ Lewinsky 8/20/98 GJ at 54.
---------------------------------------------------------------------------
Likewise, the President's recollection of the limited
nature of their sexual contacts was not a subject of emotional
indifference to him. Ms. Lewinsky testified to the grand jury
that the President's refusal to engage in specific sexual acts
was his way of rationalizing his behavior.109 Ms.
Lewinsky herself described the depth of the President's
emotional reaction when he rebuffed her sexual overture to him
in August of 1997, several months after the President had ended
their relationship. According to Ms. Lewinsky, she was
``shocked'' about the extent to which the President became
``visibly upset'' and ``emotionally upset'' about her
overture.110 The President's public expressions of
guilt and remorse over his inappropriate conduct underscore
this same point.
---------------------------------------------------------------------------
\109\ Lewinsky 8/20/98 GJ at 24.
\110\ Lewinsky 8/26/98 GJ at 51-52; see also Lewinsky 8/20/98 GJ at
70.
---------------------------------------------------------------------------
In light of the contradictory state of the evidence, the
uncertain probative worth of Ms. Lewinsky's contemporaneous
statements to friends and the other failures of recollection
documented in the record, it seems highly unlikely that a
Senate trial will ever be able to adduce clear and convincing
evidence that the President intentionally lied to the grand
jury about the exact nature of his intimate contacts with Ms.
Lewinsky.
(c) The President did not commit an impeachable offense
when testifying about the date on which his
inappropriate contacts with Ms. Lewinsky began
Article I also alleges that the President made a false
statement to the grand jury regarding the timing of the
beginning of his relationship with Ms. Lewinsky. The Referral
charges the President with making a false statement because he
testified to the grand jury that his inappropriate relationship
with Ms. Lewinsky began in early 1996, whereas Ms. Lewinsky
testified that their relationship began in November 1995. In
the Majority Staff's initial presentation to the Committee on
October 5, when it was debating whether to recommend the
initiation of a formal impeachment inquiry, this particular
allegation of false testimony to the grand jury was not even
mentioned. During a hearing the Committee conducted on December
1, 1998, the Chairman even stated that this charge was a
``particularly weak'' one. Now, based on the exact same
evidentiary record, the charge has been resurrected. Even
assuming Ms. Lewinsky is correct in her recollection, the
statement by the President regarding the timing of the
relationship is completely immaterial to the grand jury's
investigation.
A statement must be material to be perjurious. Certainly
the President's testimony concerning the date that his intimate
contacts with Ms. Lewinsky began could not have made any
difference to the grand jury's inquiry into whether the
President lied during the Jones deposition about having sexual
relations with Ms. Lewinsky. The President has admitted that he
had an inappropriate relationship with Ms. Lewinsky. The
differing, yet immaterial, recollections of Ms. Lewinsky and
the President as to the commencement of the consensual
relationship--a quibble over whether the relationship began in
November 1995 or February 1996--could not possibly support a
charge of criminal perjury, much less an article of
impeachment.
Moreover, the evidence in support of the proposition that
the President testified falsely on this point is exceedingly
slight. The Independent Counsel's Referral supports this charge
by arguing that the President was motivated to lie about the
date on which his physical relationship with Ms. Lewinsky
started because the President did not want to admit having an
inappropriate relationship with an intern.111 As
support for this assertion, the Referral cites a comment from
the President to Ms. Lewinsky where, according to Ms. Lewinsky,
the President said that her ``pink intern pass'' was ``going to
be a problem.'' 112 The Referral suggests that the
President intentionally misled the grand jury concerning the
beginning of his relationship to avoid having to acknowledge
inappropriate physical contact with Ms. Lewinsky while she was
an intern.113 This is an extremely unconvincing
argument.
---------------------------------------------------------------------------
\111\ Referral at 149.
\112\ Lewinsky 7/30/98 302 at 6.
\113\ Referral at 149.
---------------------------------------------------------------------------
First, the President's admission in his grand jury
testimony of his inappropriate physical contacts with Ms.
Lewinsky sparked an entirely foreseeable firestorm of intense
public criticism of the President's conduct. The suggestion
that the President intentionally sought to mislead the grand
jury based on the hope that such public criticism could be
muted by obscuring Ms. Lewinsky's employment status at the time
the relationship began seems strained, to say the least.
Second, the evidence in the record strongly suggests a much
more plausible alternative explanation for the President's
comment to Ms. Lewinsky about her intern pass: namely, that he
was concerned that this pass did not allow her access to the
West Wing without an escort. Ms. Lewinsky confirmed that to be
the President's concern when he made the statement to
her.114 The attempt to characterize the President's
mere confusion over dates as an intentionally perjurious
statement finds no persuasive support in the record.
---------------------------------------------------------------------------
\114\ Lewinsky 8/24/98 FBI 302 form at 5.
---------------------------------------------------------------------------
(d) The President did not commit an impeachable offense
when testifying about the number of occasions on
which he was alone with Ms. Lewinsky and the number
of occasions on which they were having phone sex
The Majority Counsel's presentation, alleged not only the
false statements to the grand jury outlined above, but also
that the President intentionally perjured himself when he
admitted to the grand jury that he had been alone with Ms.
Lewinsky on ``certain occasions'' and that he ``also had
occasional telephone conversations with Lewinsky that included
sexual banter.'' Incredibly, the Majority Counsel charges that
these candid admissions were, in fact, intentionally false
because the record suggests that the President was alone with
Ms. Lewinsky on twenty occasions and that the President had
seventeen phone conversations with Ms. Lewinsky that included
sexual banter. The Majority Counsel offered no support for his
contention that the President's description was intentionally
false except to offer his opinion that ``[o]ccasional sounds
like once every four months or so doesn't it.'' In fact, the
dictionary defines ``occasional'' as an event ``occurring at
irregular or infrequent intervals.'' 115 The
meetings between Ms. Lewinsky and the President were, in fact,
``irregular and infrequent.'' 116 The Majority
Counsel also refused to offer any reason why he or the grand
jury would be legitimately interested in the exact number of
telephone calls between the President and Ms. Lewinsky that
included sexual banter. The President was never asked about
such phone calls during the Jones deposition (because phone sex
was plainly not within the definition in that case) and this
issue was, therefore, wholly irrelevant to the questions that
the grand jury was examining concerning the truth of the
President's statements during that deposition. The mere fact
that the President chose not to include as many salacious
details in his statement to the grand jury as the Independent
Counsel included in his Referral hardly constitutes an
intentional falsehood, much less an impeachable offense. To
even refer to such trivial matters amply demonstrates the
underlying partisanship of these proceedings and undermines the
Majority's claim that this inquiry is not about sex.
---------------------------------------------------------------------------
\115\ Webster's Collegiate Dictionary (10th ed. 1997).
\116\ Referral at 156 n.160; GJ Exhibit ML-7 (chart prepared by OIC
based on Lewinsky's testimony listing, inter alia, all visits with the
President).
---------------------------------------------------------------------------
2. The President Did Not Commit An Impeachable Offense When Testifying
About His Prior Testimony In The Jones Civil Deposition
This subsection of Article I represents a dramatic
departure from the approach utilized by the Independent
Counsel's Referral by alleging that the President's
descriptions and justifications for his allegedly perjurious
statements in the Jones civil deposition were themselves
perjurious. The Majority has offered no formal specifications
of which statements fall into this category. Instead, in
response to objections stated during public debate about the
Article's lack of specificity, the Members indicated an
intention to refer the full House and the Senate to the
presentation by the Majority Counsel and the record of the
debates within the Committee. With these stated intentions as
the only available guidance concerning the particulars of this
subsection, our review suggests that the following statements
are at issue:
The President's explanation of his response to
questions during the Jones deposition concerning who
had told him that Ms. Lewinsky had been subpoenaed.
The President's explanation of his response to
questions during the Jones deposition concerning
whether he had exchanged gifts with Ms. Lewinsky.
The President's explanation of why he characterized
Ms. Lewinsky's affidavit as ``true'' during the Jones
deposition.
Each of these alleged false statements are analyzed in
detail in the following section in connection with Article II,
which explains why the President's testimony during Jones
deposition, as well as his explanation of that testimony during
his grand jury appearance, was not intentionally false and did
not constitute an impeachable offense. See Section III.B,
infra.
3. The President Did Not Commit An Impeachable Offense When His
Attorney Characterized the Contents of Ms. Lewinsky's Affidavit
to the Presiding Judge in the Jones case
In another departure from the approach taken by the
Independent Counsel's Referral, the Majority, without the
benefit of any additional evidence, has recycled an allegation
that Mr. Starr used solely in support of his claim that the
President committed perjury during his civil deposition. This
approach bootstraps the same facts into a new and separate
allegation of grand jury perjury.
The basis for the allegation in this subsection is the
President's failure to volunteer information during the Jones
deposition when Mr. Bennett, while discussing the appropriate
scope of questioning by plaintiff's attorneys, characterized
Ms. Lewinsky's affidavit as saying that ``there is no
absolutely no sex of any kind in any manner, shape or form,
with President Clinton. . . .'' 117 As a threshold
matter, no charge of perjury can exist without some perjurious
statement by the defendant. Here, of course, the Majority
appears to advance a new theory of criminal liability: the
imputed perjurious statement. Notwithstanding the legal
irrelevance Mr. Bennett's statement, the President explained in
his grand jury testimony that he was not paying close attention
to his lawyer's comments.
---------------------------------------------------------------------------
\117\ Clinton 1/17/98 Depo at 54.
I don't believe I ever even focused on what Mr.
Bennett said in the exact words he did until I started
reading this transcript carefully for this hearing.
That moment, that whole argument just passed me by. I
was a witness. I was trying to focus on what I said and
how I said it.118
---------------------------------------------------------------------------
\118\ Clinton 1/17/98 Depo at 29.
---------------------------------------------------------------------------
I was not paying a great deal of attention to this
exchange. I was focusing on my testimony. . . . I'm
quite sure that I didn't follow all the interchanges
between the lawyers all that carefully. And I don't
really believe therefore, that I can say Mr. Bennett's
testimony or statement is testimony or is imputable to
me. I didn't--I don't know that I was even paying that
much attention to it.119
---------------------------------------------------------------------------
\119\ Clinton 1/17/98 Depo at 58-59.
The Majority Counsel argues that this was a perjurious
statement because the videotape of the deposition supposedly
shows that the President was paying attention. The evaluation
of the demeanor of a witness is traditionally reserved to the
ultimate fact-finder, but a review of the tape does not reveal
any outward sign that the President is in fact following or
agreeing with Mr. Bennett's colloquy with the judge. The
President appears to be looking in Mr. Bennett's direction, but
he neither nods his head nor makes any other facial expression
from which his awareness of the import of Mr. Bennett's remarks
may be inferred. On many other occasions during the videotaped
deposition, the viewer can see the President nodding or making
some other gesture of acknowledgment which is not the case in
this exchange. In addition, the article fails to state that the
President obviously was thinking as fast as he could as he just
realized that someone was setting him up with respect to the
relationship with Ms. Lewinsky. He was, no doubt, taking every
break from questions and answers he could to try to figure out
how much the Jones attorneys knew and where the questions were
heading. It is completely logical to think that he was not
paying attention under all of these circumstances.
Finally, it is important to note that, as with all of the
other alleged perjurious statements, Judge Wright retained the
inherent authority to impose sanctions, including criminal
contempt, on the President for his alleged conduct during the
deposition. Indeed, Judge Wright was invited to do just that by
the Jones attorneys, but has, to date, declined to take any
such action. We believe that the district judge's forbearance
in this matter is a legitimate factor that weighs against the
supposed gravity of the allegations leveled against the
President.
4. The President Did Not Commit An Impeachable Offense When He
Testified About Allegations That He Had Obstructed Justice
In another apparent attempt to bolster the article charging
grand jury perjury, the Majority has included new allegations
of perjury in the grand jury not detailed in the Independent
Counsel's Referral concerning the President's responses to
questions about the actions that are alleged to constitute
obstruction of justice. It is significant that the Independent
Counsel, with all his prosecutorial zeal, declined to ``double
charge'' the President with both obstruction of justice and
separate charges of perjury based solely on his denials that he
committed obstruction of justice. The Majority, however, has
shown no similar reluctance to pile on duplicative charges.
Once again, without a formal statement of the alleged false
statements, the Minority is left to guess from the Majority
Counsel's presentation, and other exchanges during Committee
debates, that this subpart of the article refers to the
following statements:
The President's testimony that he could not recall,
but did not dispute, making a 2:00 a.m. telephone call
to Ms. Lewinsky on December 17.
The President's testimony concerning his discussion
with Ms. Lewinsky on December 28, during which meeting
it is alleged that Ms. Lewinsky asked about what to do
in response to any request from the Jones lawyers for
gifts he had given her.
The President's testimony concerning his purpose in
speaking with his secretary, Betty Currie, following
the Jones deposition.
As noted above, these allegations essentially restate charges
that are contained in Article III, which alleges obstruction of
justice. In order to avoid unnecessary duplication (a goal not
shared by these needlessly repetitive articles of impeachment),
the Minority's views on the substance of these allegations are
discussed below in the section addressing Article III. See
Section III.C, infra.
B. Article II's Allegations of Perjury In The Jones Civil Deposition
Fail To Establish An Impeachable Offense
The second article of impeachment charges the President
with unspecified instances of perjurious testimony concerning
three broad subject-matter areas: (i) the ``nature and details
of his relationship with a subordinate Government employee'';
(ii) his ``knowledge of that employee's involvement and
participation in the civil rights action brought against him';
and (iii) his ``corrupt efforts to influence the testimony of
that employee.'' Although the alleged perjurious statements
contemplated by this article are not identified, the Minority
believes that the article contemplates at least the following
allegations.
1. The President Did Not Commit An Impeachable Offense When He
Testified about the Nature of His Relationship with Ms.
Lewinsky
During his deposition in the Jones case, the President
testified that his intimate contact with Ms. Lewinsky could not
be accurately characterized as a ``sexual relationship,'' a
``sexual affair,'' or even ``sexual relations'' as that term
was used by Ms. Lewinsky in her affidavit, which was presented
to the President during his deposition. It is now a matter of
record that the President and Ms. Lewinsky enjoyed intimate
contact, but never had sexual intercourse. The question whether
the President's responses can be labeled as perjurious turns,
therefore, on whether the President testified in an
intentionally false manner when he denied various questions
inquiring into whether he had ``sex'' with Ms. Lewinsky. There
is substantial evidence in this record that the President's
responses, although evasive and misleading, did reflect a
genuinely-held and not unreasonable belief that the limited
nature of his intimate contacts with Ms. Lewinsky did not
require him to respond affirmatively to the questions put to
him on this subject.
The President testified during his grand jury appearance
that he understood questions concerning sexual relations to be
inquiring into whether he had had intercourse with Ms.
Lewinsky:
If you said Jane and Harry have a sexual relationship,
and you're not talking about people being drawn into a
lawsuit and being given definitions, and then a great
effort to trick them in some way, but you are just
talking about people in ordinary conversations, I'll
bet the grand jurors, if they were talking about two
people they know, and said they have a sexual
relationship, they meant they were sleeping together;
they meant they were having intercourse
together.120
---------------------------------------------------------------------------
\120\ Clinton 8/17/98 GJ at 21.
Ms. Lewinsky was similarly convinced that her contacts with
the President did not constitute ``sex.'' In an illegally
recorded telephone conversation with Ms. Tripp, Ms. Lewinsky
confided that she did not believe that her contacts with the
---------------------------------------------------------------------------
President amounted to sex:
Tripp: Well, I guess you can count [the President] in
a half-assed sort of way.
Lewinsky: Not at all. I never even came close to
sleeping with him.
Tripp: Why, because you were standing up.
Lewinsky: We didn't have sex, Linda. Not--we didn't
have sex.
Tripp: Well, what do you call it?
Lewinsky: We fooled around.
Tripp: Oh.
Lewinsky: Not sex.
Tripp: Oh, I don't know. I think if you go to--if you
get to orgasm, that's having sex.
Lewinsky: No, it's not. It's----
Tripp: Its not having----
Lewinsky: Having sex is having
intercourse.121
---------------------------------------------------------------------------
\121\ Lewinsky/Tripp 10/3/97 Tr.0018 at 49.
---------------------------------------------------------------------------
Another friend of Ms. Lewinsky's, Dale Young, testified
before the grand jury that Ms. Lewinsky had told her that ``she
didn't have sex with the President,'' and that when Ms.
Lewinsky referred to sex she meant ``intercourse.''
122 The genuineness of President Clinton's beliefs
on this subject is even supported by the OIC's account of Ms.
Lewinsky's testimony during an interview with the FBI:
\122\ Young 6/23/98 GJ at 91.
---------------------------------------------------------------------------
[A]fter having a relationship with him, Lewinsky
deduced that the President, in his mind, apparently
does not consider oral sex to be sex. Sex to him must
mean intercourse.123
---------------------------------------------------------------------------
\123\ App. at 1558 (8/19/98 FBI 302 Form Interview of Ms.
Lewinsky).
The record is convincing that these beliefs were not only
genuinely held, but objectively reasonable. Numerous dictionary
definitions support both the President's and Ms. Lewinsky's
interpretation of sexual relations as necessarily including
---------------------------------------------------------------------------
intercourse.
Webster's Third New International Dictionary (1st ed.
1981) at 2082, defines ``sexual relations'' as
``coitus;''
Random House Webster's College Dictionary (1st ed.
1996) at 1229, defines ``sexual relations'' as ``sexual
intercourse; coitus;''
Merriam-Webster's Collegiate Dictionary (10th ed.
1997) at 1074, defines ``sexual relations'' as
``coitus;'
Black's Law Dictionary (Abridged 6th ed. 1991) at 560,
defines ``intercourse'' as ``sexual relations;'' and
Webster's Tenth Edition defines ``sexual relations''
as ``coitus'' which is defined as ``intercourse.''
In short, the evidence supports only the conclusion that the
President's responses with respect to these undefined terms
were truthful and good faith responses to indisputably
ambiguous questions. There is no evidence to the contrary.
2. The President Did Not Commit An Impeachable Offense When He
Testified about Meeting Alone with Lewinsky
Some Minority Members of the Committee have expressed
discomfort with the President's responses during the Jones
deposition to questions about whether he was ever alone with
Ms. Lewinsky, some even concluded that they believed his
testimony may have been false. The President's counsel,
however, has strongly argued that the President's responses on
this point cannot be characterized as perjurious.
President Clinton's deposition testimony regarding
whether he was alone with Ms. Lewinsky at various times
and places does not constitute perjury. The fundamental
flaw in the charge is that it is based on a
mischaracterization of the President's testimony--the
President did not testify that he was never alone with
Ms. Lewinsky.
Both the Starr Referral and Mr. Schipper's
presentation to the Committee start from the incorrect
premise that the President testified that he was never
alone with Ms. Lewinsky. In fact, the President did not
deny that he had been alone with Ms. Lewinsky. For
example, the President answered ``yes'' to the question
``your testimony is that it was possible, then, that
you were alone with her . . .?'' 124
---------------------------------------------------------------------------
\124\ Clinton 1/17/98 Depo at 53. In his grand jury testimony the
President stated that he had been alone with Ms. Lewinsky. See, e.g.,
App. at 481. The term ``alone'' is vague unless a particular geographic
space is identified. For example, Ms. Currie testified that ``she
considers the term alone to mean that no one else was in the entire
Oval Office area.'' Supp. at 534-35 (1/24/98 FBI Form 302 Interview of
Ms. Currie; see also Supp. at 665 (7/22/98 grand jury testimony of Ms.
Currie) (``I interpret being `alone' as alone . . . [W]e were around,
so they were never alone.''). Ms. Currie also acknowledged that the
President and Ms. Lewinsky were ``alone'' on certain occasions if alone
meant that no one else was in the same room. Supp. at 552-53 (1/27/98
grand jury testimony of Ms. Currie).
---------------------------------------------------------------------------
Whatever confusion or incompleteness there may have
been in the President's testimony about when and where
he was alone with Ms. Lewinsky cannot be charged
against the President. The Jones lawyers failed to
follow up on incomplete or unresponsive answers. They
were free to ask specific follow-up questions about the
frequency or locale of any physical contact, but they
did not do so. This failure cannot be used to support a
charge of perjury.125
---------------------------------------------------------------------------
\125\ Submission by Counsel for President Clinton to the Committee
on the Judiciary of the United States House of Representatives, pp. 77-
78 (Dec. 8, 1998).
In addition to the evidentiary questions raised by the
President's counsel, the lack of materiality of any of the
President's responses concerning Ms. Lewinsky in the Jones
litigation undercuts arguments that false statements in this
civil deposition could support the criminal charge of perjury,
much less constitute an impeachable offense.
3. The President Did Not Commit An Impeachable Offense When He
Testified about Gifts He Exchanged with Lewinsky
The President's civil deposition testimony has been
seriously mischaracterized by suggestions that the President
falsely stated that ``he could not recall whether he had given
any gifts to Ms. Lewinsky.'' 126 In fact, the
President's response, fairly read, clearly concedes that he had
given Ms. Lewinsky gifts, but that he could not specifically
recall what they were.
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\126\ Referral at 158.
Q. Well, have you given any gifts to Monica Lewinsky?
A. I don't recall. Do you know what they were?
127
---------------------------------------------------------------------------
\127\ Clinton 1/17/98 Depo. at 75 (emphasis added).
President Clinton confirmed to the grand jury that this was the
---------------------------------------------------------------------------
proper interpretation of his response.
I think what I meant there was I don't recall what
they were, not that I don't recall whether I had given
them.128
---------------------------------------------------------------------------
\128\ Clinton 8/17/98 GJ at 52:7-8.
The Majority Counsel, in his December 10 presentation to
the Committee, claimed that this response was perjurious on the
theory that an answer that ``baldly understates a numerical
fact'' in ``response to a specific quantitative inquiry'' may
be technically true but is actually false.129
Majority Counsel's belabored construction of the applicable
legal principles totally ignores the fact that no
``quantitative inquiry'' was put to the President on this
topic. The President was not asked how many gifts he had given
to Ms. Lewinsky, but simply whether he had given her any gifts.
In response to such an inquiry, it is astounding that the
Majority Counsel continues to insist that the President's
immediate acknowledgment that he had given Ms. Lewinsky gifts
amounts to a perjurious statement.130 The entire
theory of alleged perjury by the President concerning gifts
rests, therefore, not on the President's denials that gifts had
been exchanged, but simply on his failure to recall the gifts
with specificity.
---------------------------------------------------------------------------
\129\ Majority Counsel's Presentation (Dec. 10, 1998).
\130\ Indeed, the President readily acknowledged having given Ms.
Lewinsky certain gifts after they were specifically identified. See
Clinton 1/17/98 Depo at 75 (``Q. Do you remember giving her an item
that had been purchased from The Black Dog store at Martha's Vineyard?
A. I do remember that . . ..'').
---------------------------------------------------------------------------
Before discussing each specific question concerning gifts,
it is important to note that the President testified during his
grand jury testimony that he was not especially concerned about
the Jones attorneys discovering that he had exchanged gifts
with Monica Lewinsky:
I formed an opinion really early in 1996, once I got into
this unfortunate and wrong conduct, that when I stopped it,
which I knew I'd have to do and which I should have done a long
time before I did, that she would talk about it. Not because
Monica Lewinsky is a bad person. She's basically a good girl.
She's a good young woman with a good heart and a good mind. I
think she is burdened by some unfortunate conditions of her
upbringing. But she's basically a good person. But I knew that
the minute there was no longer any contact, she would talk
about this. She would have to. She couldn't help it. It was, it
was a part of her psyche.131
---------------------------------------------------------------------------
\131\ Clinton 8/17/98 GJ at 575-76.
---------------------------------------------------------------------------
The President also testified that he did not view an admission
about gifts as necessarily indicating a romantic relationship
between himself and Monica Lewinsky:
And let me also tell you, Mr. Bittman, if you go back and
look at my testimony here, I actually asked the Jones lawyers
for help on one occasion, when they were asking me what gifts I
had given her, so they could--I was never hung up on this gift
issue. Maybe its because I have a different experience. But,
you know, the President gets hundreds of gifts a year, maybe
more. I have always given a lot of gifts to people, especially
if they give me gifts. And this was no big deal to me. I mean,
it's nice. I enjoy it. I gave dozens of personal gifts to
people last Christmas. I give gifts to people all the time.
Friends of mine give me gifts all the time, give me ties, give
me books, give me other things. So, it was just not a big deal.
* * * * * * *
And when I was asked about this in my deposition, even
though I was not trying to be helpful particularly to these
people that I though were not well-motivated, or being honest
or even lawful in their conduct vis-a-vis me, that is, the
Jones legal team, I did ask them specifically to enumerate the
gifts. I asked them to help me because I couldn't remember the
specifics. So, all I'm saying is, it didn't--I wasn't troubled
by this gift issue.
* * * * * * *
I have always given a lot of people gifts. I have always been
given gifts. I do not think there is anything improper about a
man giving a woman a gift, or a woman giving a man a gift, that
necessarily connotes an improper relationship. So, it didn't
bother me.132
---------------------------------------------------------------------------
\132\ Clinton 8/17/98 GJ at 43, 45 & 46.
Even Linda Tripp's grand jury testimony confirmed that the
President expressed no great alarm to Ms. Lewinsky about the
prospect that his gifts to her might be surrendered to the
---------------------------------------------------------------------------
Jones attorneys.
But the interesting thing was his take on that, and so
then Monica's take on that, was no big deal. No one
seems to--he said it's still just a fishing net and
they're just--you know, maybe he bought 25 hat pins and
its known that he bought 25 hat pins . .
.133
---------------------------------------------------------------------------
\133\ Tripp 7/29/98 GJ at 105.
The President also pointed out in his own defense that the
specificity of the questions put to him by the Jones attorneys
made it clear to him that they had specific information
---------------------------------------------------------------------------
concerning his receipt of the gifts:
It was obvious to me by this point in the deposition,
in this deposition, that they had, these people had
access to a lot of information from somewhere, and I
presume it came from Linda Tripp. And I had no interest
in not answering their questions about these gifts. I
do not believe that gifts are incriminating, nor do I
think they are wrong. I think it was a good thing to
do. I'm not, I'm still not sorry I gave Monica Lewinsky
gifts.134
---------------------------------------------------------------------------
\134\ Clinton 8/17/98 GJ at 51-52.
In order to credit the assertion that the President's failures
of memory regarding specific gifts were intentionally false
statements rather than genuine memory lapses, one has to accept
the notion that the President intentionally misled the Jones
attorneys about gifts that he did not believe would indicate an
improper relationship and about which the Jones attorneys
clearly had specific information. These premises are inherently
implausible. The actual facts concerning the specific gifts
about which the President was asked quickly reveals the
insubstantiality of these allegations.
The hat pin. In response to specific follow-up questions on
this topic, the President conceded that he may have given Ms.
Lewinsky a hat pin, but that he had no specific recollection of
doing so. There is no persuasive evidence that the President
falsely denied that he could not recall whether he gave Ms.
Lewinsky a hat pin. The President gave Ms. Lewinsky that gift
on February 28, 1997, almost eleven months prior to his
deposition in the Jones case. 135 Under these
circumstances, the President's inability to recall whether he
had given this specific item to Ms. Lewinsky is hardly so
remarkable as to justify the inference that the President's
failure of recollection was an intentionally perjurious
statement. 136
---------------------------------------------------------------------------
\135\ Referral at 156.
\136\ The Referral also misleadingly suggests that the President
also spoke with Currie about the hat pin around the same time that Ms.
Lewinsky claims to have discussed with the President the request for it
by the Jones lawyers. Ms. Currie testified that she did not know when
she discussed the hat pin with the President, and her description of
their conversation strongly supports the conclusion that it occurred
shortly after the President presented Ms. Lewinsky with the hat pin on
February 28, 1997. Currie 5/6/98 GJ at 142:9-10 (``I think he may have
said something `Did Monica show you the hat pin I gave her . . . ' '').
---------------------------------------------------------------------------
It has been argued that the President must have had a
specific recollection of the hat pin by citing to Ms.
Lewinsky's testimony that she specifically discussed the hat
pin with the President on December 28, 1997, after she received
a subpoena from the Jones lawyers.137 According to
Ms. Lewinsky, she met with the President on December 28, 1997,
and brought up the fact that she had received a subpoena from
the Jones lawyers asking her to produce, among other things,
any hat pin given to her by the President.138
According to Ms. Lewinsky, the President ``said that that had
sort of concerned him also and asked me if I had told anyone
that he had given me this hat pin and I said no.''
139 The entire discussion concerning the Jones case,
according to Ms. Lewinsky, took ``maybe about five--no more
than ten minutes.'' 140 The President testified to
the grand jury that he would not dispute Ms. Lewinsky's
recollection, but reiterated that he had no recollection of any
reference to the hat pin during that conversation:
---------------------------------------------------------------------------
\137\ Referral at 156.
\138\ Lewinsky 8/6/98 GJ at 152.
\139\ Lewinsky 8/6/98 GJ at 152.
\140\ Lewinsky 8/6/98 GJ at 151:18-19.
---------------------------------------------------------------------------
Q. Well, didn't she tell you, Mr. President, that the
subpoena specifically called for a hat pin that you had
. . . given her?
A. I don't remember that. I remember--sir, I've told
you what I remember. That doesn't mean my memory is
accurate. A lot of things have happened in the last
several months, and a lot of things were happening
then. But my memory is she asked me a general question
about gifts.141
---------------------------------------------------------------------------
\141\ Clinton 8/17/98 GJ at 45:9-16.
The record is simply inconclusive as to whether the President's
failure to recall giving a hat pin to Ms. Lewinsky was
intentionally false.
In addition, this factual point was not material to the
Jones lawsuit. The gift of a hat pin would not have signified
an inappropriate relationship between the President and Ms.
Lewinsky. Indeed, the President readily conceded that he may
have given Ms. Lewinsky a hat pin and, notwithstanding his
inability to summon a specific recollection of that gift, the
Jones attorneys were free to pose appropriate follow-up
questions, which they declined to do.
Book ``about'' Walt Whitman. When asked if he had ever
given Ms. Lewinsky a book ``about'' Walt Whitman, the President
responded by saying that ``I give people a lot of gifts, and
when people are around I give a lot of things I have at the
White House away, so I could have given her a gift, but I don't
remember a specific gift.'' 142 The President had
given Ms. Lewinsky a volume of poetry by Walt Whitman called
``Leaves of Grass.'' 143 Jones' lawyer, however,
inartfully asked the President whether he ever gave Ms.
Lewinsky a book ``about'' Walt Whitman.144 The
allegation that the President responded falsely to this
question appears to be premised on the assumption that the
President was obligated to guess about what the Jones lawyers
intended to ask and respond accordingly. Our perjury statutes
impose no such obligation. Simply put, the President's
testimony on this point was not perjurious.
---------------------------------------------------------------------------
\142\ Clinton 1/17/98 Depo. at 75.
\143\ Referral at 156.
\144\ Clinton 1/17/98 Depo. at 75.
---------------------------------------------------------------------------
The gold broach. The President also testified that he did
not remember giving Ms. Lewinsky a gold broach.145
Both the Majority Counsel and the Independent Counsel allege
that the President knowingly lied in denying any specific
recollection of giving the broach to Ms. Lewinsky, but neither
has acknowledged that Ms. Lewinsky herself suffered lapses of
memory concerning her receipt of that item. For example, in
support of its allegation that the President gave Ms. Lewinsky
the broach, the Referral directs the reader to the ``Chart of
Contacts and Gifts'' prepared by the OIC from all of the
evidence it has received.146 This chart is described
by Ms. Lewinsky during one of her grand jury appearances as a
document she prepared in consultation with the Independent
Counsel, and that ``definitely includes the visits I had with
him, as well as most of the gifts we exchanged.''
147 Ms. Lewinsky also agreed that the chart was ``a
pretty accurate rendition or description of [Lewinsky's] memory
of all the events.'' 148 This chart, although
reviewed by Ms. Lewinsky on several occasions 149
and cited by the Referral in support of the assertion that the
President had given Ms. Lewinsky a gold broach 150,
does not list the gold broach.
---------------------------------------------------------------------------
\145\ Clinton 1/17/98 Depo. at 75.
\146\ Referral at 156 n.160; GJ Exhibit ML-7.
\147\ Lewinsky 8/6/98 GJ at 27-28.
\148\ Lewinsky 8/6/98 GJ at 28:18-19.
\149\ Lewinsky 8/7/98 302 at 1.
\150\ Referral at 156 n.160 (``Ms. Lewinsky testified that the
President had given her a gold broach, . . .'')
---------------------------------------------------------------------------
A review of all the statements and testimony given by Ms.
Lewinsky reveals that a ``broach'' is only mentioned once in
passing as an item included in the box of items given to Currie
on December 28, 1997.151 The broach is not
mentioned, however, in other interviews with Ms. Lewinsky
concerning gifts.152 Ms. Lewinsky's repeated failure
to recall the broach she received from the President during
multiple interviews with the Independent Counsel is certainly
relevant to any assessment of the truthfulness of the
President's testimony that he did not recall giving that item
to her. The Majority, however, makes no attempt to place these
facts in their proper context.
---------------------------------------------------------------------------
\151\ Lewinsky 7/27/98 302 at 8.
\152\ Lewinsky 7/27/98 302 at 14-15 (Lewinsky lists all gifts
received from President, but broach is not itemized); see also Lewinsky
7/30/98 302 at 19-21 (similar list does not mention a gold broach).
---------------------------------------------------------------------------
Moreover, one of Ms. Lewinsky's confidante's, Neysa
Erbland, testified that she had heard about Ms. Lewinsky's
receipt of the broach from the President around Christmas of
1996.153 The more than one-year gap between the time
that the President gave the broach to Ms. Lewinsky and the time
that he was asked about it during the Jones deposition
reinforces the reasonableness of his inability to recall that
specific gift.
---------------------------------------------------------------------------
\153\ Erbland 2/12/98 GJ at 41. The Referral misleadingly asserts
that Lewinsky made ``near-contemporaneous'' comments about the receipt
of the broach to four of her confidantes. Referral at 156 n.160. With
the exception of Neysa Erbland, however, three of these witnesses had
no knowledge as to when Lewinsky received the broach from the President
and each had heard about or seen the gift at different times of the
year. Raines 1/29/98 GJ at 53:13-18 (cannot recall whether Lewinsky
received broach before or after leaving White House); Ungvari 3/19/98
GJ at 44 (saw either the pin or the broach, but cannot recall which
one, at Lewinsky's father's house ``this past Thanksgiving''); Tripp 7/
29/98 GJ at 105 (recounting discussion about broach after Lewinsky
received subpoena in December 1997).
---------------------------------------------------------------------------
4. The President Did Not Commit An Impeachable Offense When He
Testified about Whether He Had Talked with Lewinsky about the
Possibility She Would Be Asked to Testify in the Jones Case
During the Jones deposition, when questioned as to whether
he ``ever talked to Monica Lewinsky about the possibility that
she might be asked to testify?'' the President began an answer
with ``I'm not sure,'' but then suggested that if he had, it
was as part of a conversation in which he joked that every
woman he had ever talked to was going to be called as a witness
in the Paula Jones case. 154 This was a truthful
response. 155 The President did not deny that he had
had other conversations with Ms. Lewinsky about the Jones case.
The President expressed uncertainty about whether there were
other occasions. The President testified that ``I don't think
we ever had more of a conversation than that about it.'' when
describing the earlier exchange with Ms. Lewinsky over whether
she might appear on the witness list. 156 As in so
many other instances, the Jones attorneys failed to ask
appropriate follow-up questions such as ``were there any other
conversations concerning the possibility that Ms. Lewinsky
would testify in the Jones case?''
---------------------------------------------------------------------------
\154\ Clinton 1/17/98 Depo at 69.
\155\ Ms. Lewinsky confirmed the accuracy of the President's
recollection of this conversation in her testimony. See Lewinsky 8/24/
98 FBI 302 form (``LEWINSKY advised CLINTON may have said during this
conversation that every woman he had ever spoken to was going to be on
the witness list.'').
\156\ Clinton 1/17/98 Depo at 70-71.
---------------------------------------------------------------------------
Perjury, of course, requires proof that a defendant
knowingly made a false statement as to material facts.
157 As we have already discussed, testimony
regarding Ms. Lewinsky was not central to the Jones case.
Moreover, the following types of answers cannot be
characterized as perjurious: literally truthful answers that
imply facts that are not true, see, e.g., United States v.
Bronston, 409 U.S. 352, 358 (1973), truthful answers to
questions that are not asked, see, e.g., United States v. Corr,
543 F.2d 1042, 1049 (2d Cir. 1976), and failures to correct
misleading impressions. See, e.g., United States v. Earp, 812
F.2d 917, 919 (4th Cir. 1987). The Supreme Court has made
abundantly clear that it is not relevant for perjury purposes
whether the witness intends his answer to mislead, or indeed
intends a ``pattern'' of answers to mislead, if the answers are
truthful or literally truthful.
---------------------------------------------------------------------------
\157\ United States v. Dunnigan, 507 U.S. 87, 94 (1993).
---------------------------------------------------------------------------
Ms. Lewinsky has only testified about one other discussion
with the President about the possibility that she ``might'' be
asked to testify. Ms. Lewinsky claims that the President told
her during a December 17 phone call that she had appeared on
the Jones witness list. Subsequent conversations between the
President and Ms. Lewinsky about the receipt of her subpoena
two days later would not have been responsive to the question
posed by the Jones attorneys because the ``possibility that she
might be asked to testify'' had become a reality by that point.
Even if Ms. Lewinsky's testimony is fully credited, the
President's failure to recall that they discussed the
possibility that she would be asked to testify in the Jones
case during their December 17 conversation was an
understandable memory lapse. That call was made at 2:00 a.m.
and the main purpose of the call was to inform Ms. Lewinsky
about the death of Betty Currie's brother.
5. The President Did Not Commit an Impeachable Offense When He
Testified About Whether Lewinsky Had Told Him She Had Been
Subpoenaed
It is alleged that the President committed perjury in his
deposition when he failed to acknowledge that he knew that Ms.
Lewinsky had been subpoenaed at the time he had last seen and
spoken to her. The President acknowledged, however, that he
knew that Ms. Lewinsky had been subpoenaed, but that he was not
sure when was the last time he had seen and spoken with her
(but that it was sometime around Christmas), and that he had
discussed with her the possibility that she would have to
testify.
The allegation that the President denied knowing that Ms.
Lewinsky had been subpoenaed the last time he spoke to her
illustrates the problem of taking selected pieces of testimony
out of context.
Q. Did she tell you she had been served with a
subpoena in this case?
A. No. I don't know if she had been. 158
---------------------------------------------------------------------------
\158\ Clinton 1/17/98 Depo at 68.
---------------------------------------------------------------------------
This testimony does not support the charge that the
President perjured himself by denying that he knew that Ms.
Lewinsky had been subpoenaed the last time he had spoken with
her. First, the testimony immediately following this exchange
demonstrates both that the President was not hiding that he
knew Ms. Lewinsky had been subpoenaed by the time of the
deposition and that the Jones lawyers were well aware that this
was the President's position:
Q. Did anyone other than your attorneys ever tell you
that Monica Lewinsky had been served with a subpoena in
this case?
A. I don't think so.
* * * * * * *
A. Bruce Lindsey, I think Bruce Lindsey told me that
she was, I think maybe that's the first person [who]
told me she was. I want to be as accurate as I can.
Q. Did you talk to Mr. Lindsey about what action, if
any, should be taken as a result of her being served
with a subpoena?
A. No.159
---------------------------------------------------------------------------
\159\ Clinton 1/17/98 Depo at 68-70.
---------------------------------------------------------------------------
It is evident from the complete exchange on this subject
that the President was not generally denying that he knew that
Ms. Lewinsky had been subpoenaed in the Jones case. The
questions that the Jones lawyers were asking the President also
make clear that this is what they understood the President's
testimony to be.
Second, the President's testimony cannot fairly be read as
an express denial of knowledge that Ms. Lewinsky had been
subpoenaed the last time he had spoken to her before the
deposition. Most importantly, the President was not asked
whether he knew that Ms. Lewinsky had been subpoenaed on
December 28th, which was the last time he had seen her. When
the President answered the question, ``Did she tell you she had
been served with a subpoena in this case?'', he plainly was not
thinking about December 28th. To the contrary, the President's
testimony indicates that he was thoroughly confused about the
dates of his last meetings with Ms. Lewinsky, and he made that
abundantly clear to the Jones lawyers:
Q. When was the last time you spoke with Monica
Lewinsky?
A. I'm trying to remember. Probably sometime before
Christmas. She came by to see Betty sometime before
Christmas. And she was there talking to her, and I
stuck my head out, said hello to her.
Q. Stuck your head out of the Oval Office?
A. Uh-huh, Betty said she was coming by and talked to
her, and I said hello to her.
Q. Was that shortly before Christmas or----
A. I'm sorry, I don't remember. Been sometime in
December, I think, and I believe--that may not be the
last time. I think she came to one of the, one of the
Christmas parties. 160
---------------------------------------------------------------------------
\160\ Clinton 1/17/98 Depo at 68 (emphasis added).
---------------------------------------------------------------------------
His statement that he did not know whether she had been
subpoenaed directly followed this confused exchange and was not
tied to any particular meeting with her. By that time it is
totally unclear what date the answer is addressing. Given his
confusion, which the Jones lawyers made no attempt to resolve,
it is difficult to know what was being said, much less to label
it false and perjurious.
6. The President Did Not Commit An Impeachable Offense When He
Testified about Who Had Informed Him That Lewinsky Had Received
a Subpoena in the Jones Case
Article II also appears to encompass the claim that the
President perjured himself by failing to identify Vernon Jordan
as one of the individuals who told him that Ms. Lewinsky had
been served with a subpoena. In fact, when asked who had
informed him that Ms. Lewinsky had been subpoenaed, the
President began to identify the individuals who had conveyed
that information to him, but the Jones attorneys did not
consider the matter sufficiently important to elicit all of the
responsive information. To support his perjury claim, the
Majority Counsel unfairly rips a single sentence of the Jones
deposition out of context without ever acknowledging that the
President, in response to very next question, began to amend
and expand on his answer to the question at issue. The exact
sequence is as follows:
Q. Did anyone other than your attorneys ever tell you
that Monica Lewinsky had been served with a subpoena in
this case?
G. I don't think so.
Q. Did you ever talk with Monica Lewinsky about the
possibility that she might be asked to testify in this
case?
Q. Bruce Lindsey. I think Bruce Lindsey told me that
she was, I think maybe that's the first person who told
me she was.161
---------------------------------------------------------------------------
\161\ Clinton 1/17/98 Depo. at 68-69 (emphasis added).
The Jones attorneys then proceeded to question the President
about the specifics of his conversation with Lindsey concerning
this subject. After the President had responded fully to these
questions, the Jones attorneys failed to ask the obvious
follow-up question that had been invited by the President's use
of the qualifier ``first'': who else besides your lawyers told
you that Ms. Lewinsky had been served with a subpoena? Criminal
sanctions cannot attach to a deposition answer that is
incomplete on its face if the lawyer posing the questions is
not even interested enough to pursue obvious follow-up
questions. Our system of justice does not impose criminal
sanctions ``simply because a wily witness succeeds in derailing
the questioner--so long as the witness speaks the literal
truth.'' 162
---------------------------------------------------------------------------
\162\ United States v. Bronston, 409 U.S. 352, 360 (1973).
---------------------------------------------------------------------------
The Independent Counsel's Referral also freely speculated
that the President's incomplete answer was motivated by his
reluctance to mention Jordan, who continues to be investigated
by the Independent Counsel for alleged obstruction of justice
relating to Webster Hubbell.163 The Independent
Counsel's insinuations in this regard, however, studiously
ignores the fact that the President truthfully identified Bruce
Lindsey as one of the individuals who told him that Lewsinky
had been subpoenaed.164 Lindsey, like Jordan, has
long been under an unfair cloud of suspicion resulting from the
Independent Counsel's investigation into supposedly
``obstructionist'' activities. If the President, as the
Independent Counsel claims, omitted mentioning Jordan out of
concern about ``admitting any possible link'' between Ms.
Lewinsky and a person who was already under investigation for
``obstructing justice,'' then this same logic would have
militated against mentioning Lindsey. The Independent Counsel's
logically inconsistent speculation only serves to highlight the
persistent factual weaknesses in the allegations of criminal
wrongdoing that have been uncritically adopted by the Majority.
---------------------------------------------------------------------------
\163\ Referral at 189.
\164\ Clinton 1/17/98 Depo at 68-69.
---------------------------------------------------------------------------
7. The President Did Not Commit An Impeachable Offense When He
Testified about Whether Anyone Had Reported to Him about a
Conversation with Ms. Lewinsky Concerning the Jones Case in the
Two Weeks Prior to the Deposition
During the Jones deposition, the President was asked
whether, in the ``past two weeks'' (before January 17) anyone
had reported to him that they had had a conversation with Ms.
Lewinsky about the Jones lawsuit. The President replied he
``did not believe so.'' 165 This allegedly
constituted a false statement because Jordan informed the
President during a phone call on January 7 that the Lewinsky
affidavit had been signed.166
---------------------------------------------------------------------------
\165\ Clinton 1/17/98 Depo at 68-69.
\166\ Referral at 187.
---------------------------------------------------------------------------
The record does not, however, demonstrate that Mr. Jordan
told the President about a conversation with Ms. Lewinsky.
Jordan made a phone call to the President on January 7
informing him that the Lewinsky affidavit had been signed, but
Jordan did not speak with the President about his discussion
with Lewinsky on that day.167 Instead, as Jordan
testified before the grand jury, he simply conveyed to the
President that the affidavit had been signed (he refers to the
conversation with the President as ``a simple information
flow'').168
---------------------------------------------------------------------------
\167\ Referral at 187.
\168\ Referral at 187-88.
---------------------------------------------------------------------------
Simply put, the information conveyed by Mr. Jordan to the
President on December 7 did not imply that he had talked to Ms.
Lewinsky that day. For all the President knew, Jordan learned
about the signing of the affidavit from the lawyer that Jordan
had put Ms. Lewinsky in touch with, Frank Carter. Indeed, Mr.
Jordan had previously transmitted information he learned from
Mr. Carter directly to the President.169
---------------------------------------------------------------------------
\169\ See Jordan 5/5/98 GJ at 224-26 (Jordan sometimes relayed
information to President concerning Lewinsky that he learned from
Carter).
---------------------------------------------------------------------------
8. The President Did Not Commit An Impeachable Offense When He
Testified about whether he had heard that Mr. Jordan and Ms.
Lewinsky had met to discuss the Jones case
When asked during the Jones deposition whether the
President had heard that Jordan and Ms. Lewinsky had met to
discuss the Jones case; the President recounted his belief that
the two had met to discuss the job search--about which the
President readily acknowledged an awareness. It is alleged that
this was a false statement because the President had talked to
Jordan about Ms. Lewinsky's involvement in the Jones
case.170
---------------------------------------------------------------------------
\170\ Referral, at 186.
Q. Has it ever been reported to you that [Vernon
Jordan] met with Monica Lewinsky and talked about this
case?
A: I knew that he met with her. I think Betty
suggested that he meet with her. Anyway, he met with
her. I, I thought that he talked to her about something
else. I didn't know that--I thought he had given her
some advice about her move to New York.171
---------------------------------------------------------------------------
\171\ Clinton 1/17/98 Depo at 72 (emphasis added).
The President, however, was asked only about his knowledge
of meetings between Jordan and Ms. Lewinsky concerning the
Jones case. The assertion that the President ``did not recall
whether Mr. Jordan had talked to Ms. Lewinsky about her
involvement in the Jones case,'' is misleading.172
The President was never simply asked whether he was aware that
Jordan had ever talked with Ms. Lewinsky about her involvement
in the Jones case. Instead, the President recounted his belief
that the two had met to discuss the job search--about which the
President readily acknowledged an awareness.
---------------------------------------------------------------------------
\172\ Referral at 186.
---------------------------------------------------------------------------
The President's failure to recall that Jordan told him of
meeting with Ms. Lewinsky concerning the Jones case, rather
than job search, was not intentionally false. Rather, there is
substantial evidence to suggest that the President's belief
that the meetings between Jordan and Ms. Lewinsky only involved
her job search was reasonable because the job search was a
major part of the contacts between Ms. Lewinsky and Mr. Jordan.
For example, up until December 19, Mr. Jordan's only
conversations with Ms. Lewinsky concerned her search for a job
in New York.173 Furthermore, Ms. Lewinsky's job
search was one of the topics discussed by Mr. Jordan with the
President during their December 19 meeting during which Mr.
Jordan told the President that Ms. Lewinsky had been
subpoenaed.174 Mrs. Currie asked Mr. Jordan to help
Ms. Lewinsky find a job in New York and testified that it is
not possible that the President told her to talk to Mr. Jordan
on this topic.175 Moreover, as Mr. Jordan testified,
``Lewinsky was never the main topic of any conversation with
the President.'' 176 The President's further
response--that he believed Mr. Jordan met with Ms. Lewinsky to
give her advice about her move to New York--was fully accurate.
---------------------------------------------------------------------------
\173\ Jordan 3/3/98 GJ at 92.
\174\ Jordan 3/3/98 GJ at President. 171 (``I said ``You know. I'm
trying to help her get a job and I'm going to continue to do that.' '')
\175\ Currie 5/6/98 GJ at 169-83.
\176\ Jordan 3/5/98 GJ at 28 (emphasis added).
---------------------------------------------------------------------------
C. Article III's Allegations of Obstruction of Justice Fail to
Establish an Impeachable Offense
The Committee has approved an article of impeachment
alleging that the President obstructed justice. The article
contends that the ``means used to implement this course of
conduct or scheme included one or more of the following acts:
(1) on or about December 17, 1997, William Jefferson Clinton
corruptly encouraged a witness in a Federal civil rights action
brought against him to execute a sworn affidavit in that
proceeding that he knew to be perjurious, false and misleading;
(2) on or about December 17, 1997, William Jefferson Clinton
corruptly encouraged a witness in a Federal civil rights action
brought against him to give perjurious, false and misleading
testimony if and when called to testify personally in that
proceeding; (3) on or about December 28, 1997, William
Jefferson Clinton corruptly engaged in, encouraged, or
supported a scheme to conceal evidence that had been subpoenaed
in a Federal civil rights action brought against him; (4)
[b]eginning on or about December 7, 1997, and continuing
through and including January 14, 1998, William Jefferson
Clinton intensified and succeeded in an effort to secure job
assistance to a witness in a Federal civil rights action
brought against him in order to corruptly prevent the truthful
testimony of that witness in that proceeding at a time when the
truthful testimony of that witness would have been harmful to
him; (5) on January 17, 1998, at his deposition in a Federal
civil rights action brought against him, William Jefferson
Clinton corruptly allowed his attorney to make false and
misleading statements to a Federal judge characterizing an
affidavit, in order to prevent questioning deemed relevant by
the judge. Such false and misleading statements were
subsequently acknowledged by his attorney in a communication to
that judge.; (6) [o]n or about January 18 and January 20-21,
1998, William Jefferson Clinton related a false and misleading
account of events relevant to a Federal civil rights action
brought against him to a potential witness in that proceeding,
in order to corruptly influence the testimony of that witness;
(7) on or about January 21, 23 and 26, 1998, William Jefferson
Clinton made false and misleading statements to potential
witnesses in a Federal grand jury proceeding in order to
corruptly influence the testimony of those witnesses. The false
and misleading statements made by William Jefferson Clinton
were repeated by the witnesses to the grand jury, causing the
grand jury to receive false and misleading information.''
1. The President did not encourage Ms. Lewinsky to file a false
affidavit in the Jones case or testify falsely if deposed in
that matter.
There is no doubt that Ms. Lewinsky and the President
discussed the desirability of having her submit an affidavit in
lieu of testifying, but there is no evidence that the President
encouraged her to file a false affidavit, or encouraged her to
lie if she were ultimately required to provide a deposition in
the Jones case. The President testified during his grand jury
appearance that ``I believed then, I believe now, that Monica
Lewinsky could have sworn out an honest affidavit, that under
reasonable circumstances, and without the benefit of what Linda
Tripp did to her, would have given her a chance not to be a
witness in this case.'' 177 The distinction between
the submission of a truthful and a false affidavit is crucial
to the Minority's firm conviction that there is no basis for
impeachment. The Majority chooses to simply ignore the fact
that the Jones case involved a claim of unwelcome, harassing
conduct while the President's relationship with Ms. Lewinsky
was purely consensual. Ms. Lewinsky was prepared to state
truthfully that she was not the subject of harassment or any
unwelcome advances, and the filing of an affidavit with that
statement might have avoided the need for Ms. Lewinsky to
reveal her relationship with the President.178
---------------------------------------------------------------------------
\177\ Clinton 8/17/98 GJ at 69. See also id. at 77 (``I believed
then, I believe today, that she could execute an affidavit which, under
reasonable circumstances with fair-minded, non-politically oriented
people, would result in her being relieved of the burden to be put
through the kind of testimony that, thanks to Linda Tripp's work with
you and with the Jones lawyers, she would have been put through''); 116
(``I also will tell you that I felt quite comfortable that she could
have executed a truthful affidavit, which would not have disclosed the
embarrassing details of the relationship that we had had'').
\178\ The Minority specifically notes, in that regard, that
obstruction of justice requires proof of a specific intent to obstruct
a judicial proceeding. United States v. Bashaw, 982 F.2d 168, 170 (6th
Cir. 1992); United States v. Moon, 718 F.2d 1219, 1236 (2d Cir. 1983);
United States v. Rasheed, 663 F.2d 843, 847 (9th Cir. 1981). There
simply is no such proof in this case.
---------------------------------------------------------------------------
Evidence transmitted to Congress by the Independent
Counsel, but ignored by the Majority, is equally critical in
assessing the Majority's allegations of obstruction of justice.
For example, the President testified that he never asked Ms.
Lewinsky to lie, and Ms. Lewinsky similarly testified that the
President never told her to submit a false affidavit or to lie
in any way.179 Ms. Lewinsky's words on the subject
are instructive. During her final appearance before the grand
jury, Ms. Lewinsky testified in response to a grand juror's
question that:
---------------------------------------------------------------------------
\179\ Clinton 8/17/98 GJ at 4, 7; Lewinsky 7/27/98 302 at 12.
I think because of the public nature of how this
investigation has been and what the charges aired, that
I would just like to say that no one ever asked me to
lie and I was never promised a job for my
silence.180
---------------------------------------------------------------------------
\180\ Lewinsky 8/20/98 GJ at 105.
---------------------------------------------------------------------------
Ms. Lewinsky made the same point in her earlier proffer to the
OIC. She wrote that ``[n]either the Pres. nor Mr. Jordan (or
anyone on their behalf) asked or encouraged Ms. L to lie.''
181 She also stated that she had asked the President
if he wanted to see her affidavit before it was filed, and he
said he did not.182 Ms. Lewinsky believed her denial
of a sexual relationship with the President to be true because
they had never had sexual intercourse.183 Nor did
Ms. Lewinsky contrive that definition for purposes of
litigation. Rather, she made the point to Ms. Tripp in a
surreptitiously recorded conversation in which Ms. Lewinsky
said that ``[h]aving sex is having intercourse.''
184 Moreover, she deemed the matter to be a personal
one, and none of Paula Jones' business.185
---------------------------------------------------------------------------
\181\ Lewinsky 2/1/98 Proffer at 10.
\182\ Lewinsky 8/2/98 302 at 3.
\183\ Lewinsky 2/1/98 Proffer at 10; Lewinsky 7/27/98 OIC 302 at
12.
\184\ Tripp Tape 18 at 50.
\185\ Lewinsky 8/1/98 FBI 302 form at 10.
---------------------------------------------------------------------------
The Majority also fails to mention Ms. Lewinsky's crucial
testimony that her affidavit was in no way contingent on her
receiving assistance with her search for employment. Ms.
Lewinsky told the OIC's investigators that:
[t]here was no agreement with the President, JORDAN,
or anyone else that LEWINSKY had to sign the Jones
affidavit before getting a job in New York. LEWINSKY
never demanded a job from JORDAN in return for a
favorable affidavit. Neither the President nor JORDAN
ever told LEWINSKY she had to lie.186
---------------------------------------------------------------------------
\186\ Lewinsky 7/27/98 FBI 302 form at 10.
---------------------------------------------------------------------------
Indeed, the evidence makes clear that Ms. Tripp was the
only person to suggest a jobs-for-affidavit trade. Ms. Lewinsky
repeatedly made that point in her interviews with the OIC's
staff, and in her grand jury appearances.187
---------------------------------------------------------------------------
\187\ Lewinsky 8/2/98 OIC 302 at 7 (``TRIPP told LEWINSKY not to
sign the affidavit until LEWINSKY had a job''); Lewinsky 8/6/98 GJ at
182 (reporting that Tripp said, ``Monica, promise me you won't sign the
affidavit until you get the job. Tell Vernon you won't sign the
affidavit until you get the job because if you sign the affidavit
before you get the job, they're never going to give you the job'').
---------------------------------------------------------------------------
In a further effort to support claims of obstruction of
justice, the Majority apparently adopts the OIC's argument that
the President and Ms. Lewinsky improperly agreed to use ``cover
stories'' to hide their relationship, and that Ms. Lewinsky
could use those cover stories if she were unable to avoid a
deposition appearance. While the Majority does not specifically
articulate the grounds for its charge, the OIC's Referral
acknowledges that these cover stories were created long before
Ms. Lewinsky was subpoenaed in the Jones case. The OIC
nevertheless asserts that the stories were unlawfully continued
after the subpoena was served, and that the President failed to
advise Ms. Lewinsky to abandon them when she prepared her
affidavit.188
---------------------------------------------------------------------------
\188\ Referral at 180.
---------------------------------------------------------------------------
The Minority believes it constitutionally insignificant
that two people in an inappropriate workplace relationship
would attempt to conceal their relationship. And, far from
inculpating the President, the Minority believes that the long-
standing cover stories employed by the President and Ms.
Lewinsky actually exculpate him. It is obvious that these cover
stories were not designed to obstruct justice, but simply to
prevent family members, friends, staff, and the public from
learning of the President's concededly inappropriate
relationship. Indeed, Ms. Lewinsky testified that she and the
President did not discuss denying their relationship after Ms.
Lewinsky learned she was a witness in the Jones
case.189 During one of Ms. Lewinsky's grand jury
appearances, the following exchange occurred:
---------------------------------------------------------------------------
\189\ Lewinsky 8/20/98 GJ at 63-64.
Q. Is it possible that you had these discussions
[about denying the relationship] after you learned that
you were a witness in the Paula Jones case?
A. I don't believe so. No.
Q. Can you exclude that possibility?
A. I pretty much can . . . . 190
---------------------------------------------------------------------------
\190\ Lewinsky 8/20/98 GJ at 63.
---------------------------------------------------------------------------
Thus, the record actually undermines the Majority's contention
that the President intended to obstruct justice.
The bottom line is this: the secrecy surrounding an
extramarital relationship, standing alone, is far too weak a
foundation on which to construct a criminal case, let alone an
impeachment of the President. There simply is no evidence that
the President sought to have Ms. Lewinsky file a false
affidavit or give false testimony in the Jones case.
2. The President did not Obstruct Justice by Concealing Gifts that he
Gave to Ms. Lewinsky
There is no dispute that the President and Lewinsky
exchanged gifts. Nor is it disputed that some of those gifts
were transferred by Lewinsky to the President's secretary,
Betty Currie, on December 28, 1997, the same day that the
President and Lewinsky had a brief meeting at the White House.
The article's allegation of obstruction is based on its
contention that this transfer of gifts was initiated by the
President with the intent to make them unavailable for
production in response to a document subpoena served on
Lewinsky by lawyers for Paula Jones.\191\ Referral at 169-71. A
full and fair review of all the relevant testimony strongly
suggests that Lewinsky initiated the transfer to Currie without
any intervention by the President, and that the President was
unconcerned about the possibility that gifts might be produced
to the Jones lawyers. In fact, the President testified that he
told Ms. Lewinsky that she would have to turn over to the Jones
lawyers whatever gifts she had.\192\
---------------------------------------------------------------------------
\191\ Referral at 166.
\192\ Clinton 8/17/98 GJ at 43. ``And I told [Ms. Lewinsky] that if
they asked her for gifts, she'd have to give them whatever she had, and
that that's what the law was.''
---------------------------------------------------------------------------
To reach the conclusions contained in this article, the
Majority has overlooked key evidence. For example, the
Independent Counsel alleges that Lewinsky and the President
``discussed the possibility of moving some of the gifts out of
her possession.'' A review of the actual testimony, however,
reveals that the Independent Counsel's assertion lacks a basis
in the evidence he sent. Ms. Lewinsky testified that when she
told the President on December 28, 1997, ``maybe I should put
the gifts outside my house somewhere or give them to someone,
maybe Betty[,]'' the President did not respond in the
affirmative, but said ``I don't know'' or ``[l]et me think
about that.'' \193\ This is hardly the stuff of obstruction.
---------------------------------------------------------------------------
\193\ Lewinsky 8/6/98 GJ at 152.
---------------------------------------------------------------------------
The Independent Counsel chose to state the President's
response, without bothering to mention the other nine times
they asked Ms. Lewinsky the question.\194\ Moreover, Ms. Currie
stated repeatedly that Ms. Lewinsky called her and raised the
issue of picking up the gifts and that the President never
asked her to call Ms. Lewinsky for the gifts:
---------------------------------------------------------------------------
\194\ Ms. Lewinsky made at least ten distinct statements on this
subject during the course of her original proffer, interviews, grand
jury testimony and deposition. Although the OIC claims that there was a
discussion between Ms. Lewinsky and the President on this subject, the
actual testimony does not support the OIC's contention. Lewinsky 2/1/98
proffer at 7; Lewinsky 7/27/98 interview statement at 7; Lewinsky 8/1/
98 interview statement at 11; Lewinsky 8/6/98 GJ at 152; Lewinsky 8/13/
97 interview statement at 7; Lewinsky 8/20/98 GJ at 65-66 and 70;
Lewinsky 8/24 interview statement at 4; Lewinsky 9/3/98 interview
statement at 2.
A. My recollection--the best I remember is Monica
calling me and asking me if I'd hold some gifts for
her. I said I would.
Q. And did the President know you were holding these
things?
A. I don't know.
Q. Didn't he say to you that Monica had something for
you to hold?
A. I don't remember that. I don't.\195\
---------------------------------------------------------------------------
\195\ Currie 5/6/98 GJ at 105-6.
And:
Q. Exactly how [did] that box of gifts come into your
possession?
A. I do not recall the President asking me to call
about a box of gifts.\196\
---------------------------------------------------------------------------
\196\ Currie 7/22/98 GJ at 175-6.
The OIC's argument that the President was concerned about
the gifts is inconsistent with evidence that, during the
meeting on December 28, he gave Lewinsky additional presents
for Christmas.\197\ It strains believability to suggest that
the President was concerned enough about the gifts to cause
Lewinsky to surrender possession of them, yet at the same time
was foolish enough to give her more gifts that would have to be
produced on the very same day. The President's testimony is
clear that he told Lewinsky she would have to produce any gifts
that remained in her possession, and that Lewinsky--and not
he--was worried about having to produce them.\198\
---------------------------------------------------------------------------
\197\ Referral at 168.
\198\ Clinton 8/17/98 GJ at 44-47.
---------------------------------------------------------------------------
The Referral's conclusion is also unsupported by Currie's
testimony that Lewinsky, and not Currie, initiated the
telephone call that resulted in Currie retrieving the gifts
from Lewinsky's Watergate apartment. According to Currie,
Lewinsky called her and expressed concern that people--whom
Currie understood to mean Newsweek magazine reporter Michael
Isikoff--were asking questions about the gifts.\199\ The
Independent Counsel acknowledges that ``Currie testified that
Ms. Lewinsky, not Ms. Currie, placed the call and raised the
subject of transferring the gifts[,]'' but thereafter discounts
Currie's testimony by arguing that she ultimately said that
Lewinsky might have a better recollection of these events.\200\
---------------------------------------------------------------------------
\199\ Currie 1/27/98 GJ at 57; Currie 5/6/98 GJ at 124.
\200\ Referral at 167.
---------------------------------------------------------------------------
The Majority claims to have proved that Ms. Currie called
Ms. Lewinsky about picking up the gifts, rather than the other
way around as Ms. Currie testified, by pointing to a cell phone
record (billed at one minute) which reflects a phone call from
Ms. Currie to Ms. Lewinsky's number at 3:32 p.m. on December
28th. Aside from the fact that this cell phone record (of a
``rounded-up'' one-minute phone call) proves absolutely nothing
about the content of that conversation (or even whether a
conversation actually occurred), the Majority fails to note
that, according to Ms. Lewinsky's testimony, Ms. Currie came
and picked up the gifts at 2:00 p.m. on that day. It seems
obvious that a call at 3:32 p.m. was not the call to arrange a
pick-up that occurred an hour-and-a-half earlier. The Majority,
however, refuses to acknowledge any contradictions between Ms.
Lewinsky's account and other evidence.\201\
---------------------------------------------------------------------------
\201\ Lewinsky 7/27/98 302 at 8.
---------------------------------------------------------------------------
Ms. Lewinsky, of course, recalled that Ms. Currie initiated
the conversation that resulted in the transfer of the
gifts.\202\ In effect, this article of impeachment is based on
an answer to an ambiguous leading question to a witness who
acknowledges, as any truthful witness might, the possibility
that she ``might be wrong.''
---------------------------------------------------------------------------
\202\ Lewinsky 8/6/98 GJ at 154.
---------------------------------------------------------------------------
Given the weight that the Independent Counsel attaches to
Ms. Currie's supposed concession, it is surprising to find that
the transcript of Ms. Currie's testimony does not support his
characterization of what was said. The transcript reveals that
when Currie spoke the words on which the OIC relies so heavily,
she was not talking about who initiated the call to transfer
the gifts, but apparently whether, after she picked the gifts
up, she informed the President of that fact. The actual
transcript reads as follows:
Q. What about the President's knowledge about Monica
turning over to you the gifts he had given her?
A. I don't know.
Q. Did you talk to him about it?
A. I don't remember talking to him about that, the
gifts.
Q. If Monica said you did, would that not be true?
A. If Monica said I talked to the President about it?
Q. Right.
A. Then she may remember better than I. I don't
remember.\203\
---------------------------------------------------------------------------
\203\ Currie 5/6/98 GJ at 125-26.
Read in its full context, in the entire transcript, this
highly ambiguous line of questioning is best understood to be
inquiring about the President's knowledge after the fact that
the gifts had actually been transferred. Had the prosecutor
been able to support his point directly, he would have relied
on the answer to a question like: ``Did the President know, in
advance, that Monica intended to turn the gifts over to you?''
Or, more appropriately, the answer to a question like ``Did the
President tell you to retrieve the gifts from Monica?'' could
have been cited in the Referral. The problem is that when those
questions were asked, Ms. Currie made quite clear that Ms.
Lewinsky initiated the transfer.\204\
---------------------------------------------------------------------------
\204\ Currie 1/27/98 GJ at 57-58; Currie 5/6/98 GJ at 105-06. The
President similarly denied asking Currie to retrieve any gifts. Clinton
8/17/98 GJ at 114-15.
---------------------------------------------------------------------------
In an attempt to bridge the gap between the answers it
wanted and the ones Ms. Currie gave, the Referral makes a
further unsupported suggestion: because Ms. Currie went to Ms.
Lewinsky's apartment to pick up the gifts, she must have
initiated the contact because ``the person making the extra
effort . . . is ordinarily the person requesting the favor.''
\205\ Beyond its facial implausibility, the argument fails for
a simple reason: there was no ``extra effort'' made; Ms.
Lewinsky's apartment was directly along a convenient route that
Ms. Currie could take to get home from work. Ms. Currie
testified that she stopped at Ms. Lewinsky's apartment on her
way home.\206\ Ms. Currie lives in Arlington, Virginia, and
anyone familiar with the metropolitan Washington, D.C. area
knows that the entrances to both Highways 66 and 50, which
provide ready access to Ms. Currie's residence in Arlington,
are both within blocks of Ms. Lewinsky's Watergate
apartment.\207\ This absence of ``extra effort'' demonstrates a
repeated problem with the Referral--when it confronts large
gaps in the evidence, it fills the void with illogical and
unsupported leaps. Such unsubstantiated assumptions should be
no basis for an article of impeachment.
---------------------------------------------------------------------------
\205\ Referral at 170.
\206\ Currie 5/6/98 GJ at 108, 113.
\207\ Id. at 116.
---------------------------------------------------------------------------
3. The President did not Assist Ms. Lewinsky in Obtaining a Job in New
York in Order to Influence her Testimony in the Jones Case
The Committee has approved an article of impeachment
concerning the President's alleged attempts to find Ms.
Lewinsky a job in New York at a time when she may have been a
witness against him in the Jones case.\208\ The evidence,
however, shows that the President's attempt to help Ms.
Lewinsky find a job in New York had nothing to do with buying
her silence or obstructing a legal proceeding.
---------------------------------------------------------------------------
\208\ Referral at 181.
---------------------------------------------------------------------------
The article alleges that ``the President assisted Ms.
Lewinsky in her job search motivated at least in part by his
desire to keep her ``on the team'' in the Jones litigation.''
\209\ This conclusion does not flow from the abundant evidence,
which makes clear that Ms. Lewinsky's job search began long
before she was identified as a witness in the Jones case. On
April 5, 1996, Ms. Lewinsky's supervisor at the White House
told her that she would need to leave her position in the
Legislative Affairs office, and that a job at the Pentagon was
available for her.\210\ Distraught, she met with the President
two days later, and he allegedly promised that he would bring
her back to the White House after the November elections.\211\
It was common knowledge at the White House that Ms. Lewinsky
was transferred because she was deemed to spend too much time
in the West Wing.
---------------------------------------------------------------------------
\209\ Id. at 185.
\210\ Lewinsky 8/6/98 GJ at 61.
\211\ Id. at 63.
---------------------------------------------------------------------------
Ms. Currie, who had befriended Ms. Lewinsky, believed that
Ms. Lewinsky had been ``wronged'' by her transfer.\212\ As a
result, Ms. Currie took it upon herself to try to find Ms.
Lewinsky another job at the White House. Ms. Currie contacted
White House Deputy Director of Personnel Marsha Scott and asked
Ms. Scott to meet with Ms. Lewinsky, but nothing came of the
meeting.\213\ When November passed and no White House job
materialized, she began to complain to Ms. Currie and ask why
the President didn't just order that she be returned.\214\ When
it became clear that she would never receive another White
House job, Ms. Lewinsky decided to move to New York City, where
her mother had recently taken up residence. Ms. Lewinsky told
the President on July 3, 1997, of her decision.\215\
---------------------------------------------------------------------------
\212\ Currie 5/6/98 GJ at 45.
\213\ Id. at 38.
\214\ Id. at 160.
\215\ Lewinsky 8/6/98 GJ at 67-69.
---------------------------------------------------------------------------
In October 1997, Ms. Currie contacted White House Deputy
Chief of Staff John Podesta, with whom she had a longstanding
friendship, to see whether he could assist Ms. Lewinsky in
finding a job in New York.\216\ She did so after the President
requested only that she do what she could to help Ms.
Lewinsky.\217\ Some months earlier, in the summer or fall of
1997, White House Chief of Staff Erskine Bowles, in response to
a similar request from the President, also mentioned Ms.
Lewinsky's name to Mr. Podesta and asked whether any jobs might
be available for her at the White House.\218\ While efforts to
find a White House job failed, Mr. Podesta succeeded in
arranging an interview for Ms. Lewinsky with United Nations
Ambassador Bill Richardson. Ultimately, Mr. Richardson offered
her a position that she declined.
---------------------------------------------------------------------------
\216\ Currie 1/24/98 OIC 302 at 4.
\217\ Currie 5/6/98 GJ at 170.
\218\ Bowles 4/2/98 GJ at 70.
---------------------------------------------------------------------------
These efforts to find Ms. Lewinsky a job started far too
early to have anything to do with the Jones case. Moreover, the
Majority repeatedly fails to acknowledge an innocent and highly
plausible explanation for the President's actions: he wished to
help the woman he was involved with, cared for, and felt guilty
about hurting. Instead, the Majority relies on a concocted
theory of obstruction without the facts to support it.
The OIC--and presumably the Majority--makes much of the
assistance provided to Ms. Lewinsky by White House personnel.
But Mr. Podesta made clear in his testimony before the grand
jury that there was nothing unusual about these efforts.\219\
The Majority also relies heavily on the job-search assistance
provided by Vernon Jordan. However, Ms. Lewinsky made clear in
her testimony that she--and not the President--first suggested
enlisting Mr. Jordan's help.\220\ And, as it turns out, the
idea for obtaining Mr. Jordan's assistance first arose in a
conversation between Ms. Lewinsky and her former friend, Linda
Tripp, when one of them--most likely Mrs. Tripp--suggested that
Mr. Jordan might be able to help Lewinsky.\221\ In response to
Ms. Lewinsky's request, the President suggested that she give
him a list of New York jobs in which she might be
interested.\222\ On her own, Ms. Currie also asked Mr. Jordan
to assist Ms. Lewinsky.\223\ She and Mr. Jordan were old
friends, and she was concerned because Ms. Lewinsky was
``frantic'' to find a job.\224\
---------------------------------------------------------------------------
\219\ Podesta 2/5/98 GJ at 27-29, 39, 41-42; Podesta 6/16/98 GJ at
22.
\220\ Lewinsky 8/6/98 GJ at 103-04.
\221\ Id.; Lewinsky 8/20/98 GJ at 23; Lewinsky 7/27/98 OIC 302 at
5.
\222\ Lewinsky 8/6/98 GJ at 104.
\223\ Currie 5/6/98 GJ at 176.
\224\ Id. at 172.
---------------------------------------------------------------------------
The President never asked Ms. Currie to seek Mr. Jordan's
assistance and, although Ms. Currie kept the President advised
of her efforts, she--and not the President--was the one
actively trying to assist Ms. Lewinsky.\225\ Mr Jordan confirms
that Ms. Lewinsky was referred to him by Ms. Currie, although
he acknowledges that he, too, kept the President updated on his
efforts.\226\ Mr. Jordan routinely tried to assist young people
with their careers.\227\ Indeed, Mr. Jordan recalled another
occasion on which he telephoned Ron Perelman, Chairman of the
Board of McAndrews & Forbes Holding Incorporated (the parent
company of Revlon, which eventually offered Lewinsky an entry-
level position), on behalf of a young lawyer who worked at Mr.
Jordan's law firm.\228\
---------------------------------------------------------------------------
\225\ Id. at 176, 179.
\226\ Jordan 3/3/98 GJ at 65.
\227\ Id. at 76.
\228\ Jordan 3/5/98 GJ at 55.
---------------------------------------------------------------------------
Mr. Jordan also testified, and both Ms. Lewinsky and the
President confirmed, that neither told him of their
relationship.\229\ After her initial meeting with Mr. Jordan in
early November 1997, Ms. Lewinsky complained that he was not
doing anything to help her find work.\230\ Indeed, Ms. Lewinsky
contacted Ms. Currie and asked her to speak with Mr. Jordan
about why there had been no movement on the job front.\231\ Mr.
Jordan's conduct is wholly inconsistent with the allegation
that he was trying to silence a potentially damaging witness.
Mr. Jordan did not exert any pressure on his private sector
contacts regarding a job for Ms. Lewinsky.\232\
---------------------------------------------------------------------------
\229\ Id. at 79.
\230\ Lewinsky 8/6/98 GJ at 105.
\231\ Id.
\232\ Fairbarn 1/29/98 FBI 302 form at 1; Halperin 3/27/98 FBI 302
form at 2.
---------------------------------------------------------------------------
The Referral unfairly minimizes the job-search efforts of
White House personnel that preceded Ms. Lewinsky's December 5
appearance on the witness list in the Jones case, and unfairly
emphasizes the efforts following that date. A review of the
entire record sent to Congress makes clear that efforts to help
Ms. Lewinsky began as soon as she was transferred to the
Pentagon. In context, the evidence demonstrates that the
President himself did little to assist Ms. Lewinsky, and that
the efforts he undertook were motivated by a desire to help a
person with whom he had been intimate. Indeed, as the President
testified, if he had really felt obligated to get her a job, he
certainly could have accomplished it.\233\ The President also
testified that he knew that sooner or later his inappropriate
contacts with Ms. Lewinsky would become public knowledge.\234\
And still he did not get her a job at the White House.
Moreover, the President has connections in New York that he
never used to get Ms. Lewinsky a job there.\235\
---------------------------------------------------------------------------
\233\ The President said that he did not order Ms. Lewinsky to be
hired at the White House. ``I could have done so. I wouldn't do it. She
tried for months to get in. She was angry.'' Clinton 8/17/98 GJ at 123.
\234\ Clinton 8/17/98 GJ at 135.
\235\ Currie 5/6/98 GJ at 182; Currie 5/14/98 GJ at 57.
---------------------------------------------------------------------------
With respect to Ms. Currie, who took a more active role in
assisting Ms. Lewinsky, the evidence indicates that she was
motivated by a belief that Ms. Lewinsky had been unfairly
transferred from her White House position. Finally, the record
makes abundantly clear that Mr. Jordan became involved after
Ms. Tripp suggested and Ms. Lewinsky concluded that Ms.
Lewinsky should ask for Mr. Jordan's assistance.
For her part, Ms. Lewinsky told the grand jury and the
Independent Counsel's investigators that ``[n]o one ever asked
me to lie and I was never promised a job for my silence.''
\236\ It also bears emphasis that Ms. Lewinsky's grand jury
testimony on this key point was elicited not by one of the
Independent Counsel's prosecutors, but by a grand juror who
asked, ``Monica, is there anything that you would like to add
to your prior testimony[?]' \237\ The OIC's failure to elicit
that crucial piece of exculpatory testimony is important for
Committee members to consider in determining the overall
credibility of the investigation and the scope of their own
review.
---------------------------------------------------------------------------
\236\ Lewinsky 8/20/98 GJ at 105; Lewinsky 7/27/98 OIC 302 at 10.
\237\ Lewinsky 8/20/98 GJ at 105.
---------------------------------------------------------------------------
4. The President Did Not Commit an Impeachable Offense When His Counsel
Characterized Ms. Lewinsky's Affidavit to the Presiding Judge
During the Jones Deposition
This subparagraph is indistinguishable from the allegation
contained in subparagraph 3 of Article I. The Minority views on
why these allegations do not establish an impeachable offense
are fully set forth, supra.
5. The President Did Not Relate to Ms. Currie A False And Misleading
Account of Events Relevant to the Jones Suit With an Intent to
Influence Her Testimony In Any Legal Proceeding
It is undisputed that the President met with Ms. Currie at
the White House the day after his deposition in the Jones case.
Ms. Currie testified that she and the President also spoke a
few days after the deposition--but before the fact of the OIC's
grand jury investigation was revealed--about the President's
contacts with Ms. Lewinsky.238 Majority counsel has
argued to the Committee that ``Ms. Currie was a prospective
witness'' in the Jones case at the time the President spoke to
her, and that by referring to Ms. Currie during his deposition,
the President indicated that he ``clearly wanted her to be
deposed as a witness'' in the case.239 The
Majority's allegations find no basis in the record, and are a
transparent effort to cast perfectly understandable and lawful
conduct in the most sinister light possible.240
---------------------------------------------------------------------------
\238\ Currie 1/27/98 GJ at 80-82.
\239\ Statement of Majority Counsel at 17.
\240\ It is worth noting that at least one court has concluded that
an obstruction of justice charge cannot be predicated on conduct
arising in the context of a civil lawsuit. Richmark Corp. v. Timber
Falling Consultants, 730 F.Supp. 1525 (D. Or. 1990).
---------------------------------------------------------------------------
The simple truth is that the President's actions did not
obstruct justice because Ms. Currie was not a witness in any
proceeding when they spoke, and the President had no
expectation that she would be.241 Even Mr. Starr
acknowledged during his appearance before the Committee that
``[t]he evidence is not that she was on a witness list, and we
have never said that she was.'' 242 Nor is it
persuasive for the Majority to argue that the President's
deposition references to Ms. Currie made it inevitable that her
deposition would be taken. The undeniable fact is that
following the President's deposition, the Jones lawyers never
sought to take Ms. Currie's testimony. Indeed, discovery in the
Jones case was set to close just days after the President's
deposition was taken, and it is unlikely that her deposition
could have been taken in the few days remaining.
---------------------------------------------------------------------------
\241\ Under federal law, an obstruction of justice charge does not
lie unless the defendant knew the witness in question to be involved in
a legal proceeding. 2 Leonard B. Sand, John S. Siffert, Walter P.
Loughlin, and Steven A. Reiss, Modern Federal Jury Instructions para.
46.01 at 46-14 (1997).
\242\ 11/19/98 Tr. at 192.
---------------------------------------------------------------------------
Nor did the President have any way of knowing that the OIC
was conducting a grand jury investigation of his relationship
with Ms. Lewinsky when he spoke to Ms. Currie. That fact that a
grand jury investigation had been commenced was not revealed
until the Washington Post ran a front-page story on Wednesday,
January 21, 1998, entitled ``Clinton Accused of Urging Aide to
Lie; Starr Probes Whether President Told Woman to Deny Alleged
Affair to Jones's Lawyers.'' 243 Thus, not even the
Majority can claim that the President endeavored to obstruct
Mr. Starr's criminal probe of his consensual sexual
relationship with Ms. Lewinsky.
---------------------------------------------------------------------------
\243\ Referral at 122.
---------------------------------------------------------------------------
Put in proper context, the facts reveal that the
President's statements to Ms. Currie were not motivated by a
desire to influence her testimony, but by the President's
knowledge that his deposition testimony would be leaked to the
media, 244 and that statements regarding Ms.
Lewinsky would be contradicted by aggressive press coverage of
the story. The President testified in the grand jury that he
never expected the OIC to be involved in the Jones suit, and
that his concern was that the story about Ms. Lewinsky ``would
break in the press.'' 245 Questions during the
course of the deposition led the President to believe that
``obviously someone had given [Jones' lawyers] a lot of
information, some of which struck me as accurate, some of which
struck me as dead wrong.'' 246 Following his
testimony, the President was worried that he had been asked
such detailed questions about what, to that point, he viewed as
a secret relationship with Ms. Lewinsky. The President's
concerns were borne out when, shortly after the deposition,
Internet gossip columnist Matt Drudge reported the President's
involvement with Ms. Lewinsky. Drudge's story received wide
exposure the next morning, January 18, when it surfaced on
ABC's This Week program.
---------------------------------------------------------------------------
\244\ Clinton 8/17/98 GJ at 99. The President explained his state
of mind when he appeared at his deposition as follows: [m]y goal in
this deposition was to be truthful, but not particularly helpful. I did
not wish to do the work of the Jones lawyers. I deplored what they were
doing. I deplored the innocent people they were tormenting and
traumatizing. I deplored their illegal leaking. I deplored the fact
that they knew, once they knew our evidence, that this was a bogus
lawsuit, and that because of the funding they had from my political
enemies, they were putting ahead. I deplored it. Clinton 8/17/98 GJ at
81. See also id. at 79 (``I wanted to be legal without being
particularly helpful'').
\245\ Clinton 8/17/98 GJ at 55. See also id. at 131 (``I thought we
were going to be deluged by press comments'').
\246\ Clinton 8/17/98 GJ at 132.
---------------------------------------------------------------------------
The President told the grand jury about his reasons for
talking to Ms. Currie: ``what I was trying to determine was
whether my recollection was right and that she was always in
the office complex when Monica was there . . . I was trying to
get the facts down. I was trying to understand what the facts
were . . . I was trying to get information in a hurry. I was
downloading what I remembered.'' 247 The President
plainly was hopeful that Ms. Currie was unaware of his
relationship with Ms. Lewinsky, and was testing to see how much
she knew. The state of her knowledge was important not because
he expected her to give testimony in a judicial proceeding, but
because it would help dictate the media strategy he adopted
following a leak of his testimony about Ms.
Lewinsky.248 To that end, the President testified
that he ``was not trying to get Betty Currie to say something
that was untruthful. I was trying to get as much information as
quickly as I could.'' 249
---------------------------------------------------------------------------
\247\ Clinton 8/17/98 GJ at 55-56.
\248\ While the President's efforts to tailor his media strategy in
that manner may not be admirable, it certainly is not impeachable, as
the Majority plainly conceded when it dropped similar allegations from
its article of impeachment charging that the President misused his
office.
\249\ Clinton 8/17/98 GJ at 56.
---------------------------------------------------------------------------
With some variations in wording, Ms. Currie testified that
the President made the following statements to her on January
18 regarding Ms. Lewinsky: (1) ``[y]ou were always there when
she was there, right? We were never alone;'' (2) ``[y]ou could
see and hear everything;'
(3) Monica came on to me, and I never touched her, right?';
and (4) [s]he wanted to have sex with me, and I can't do
that.'' 250 Ms. Currie also testified that a few
days later (but before the fact of the OIC's investigation
became public), she again talked to the President, and that
``it was sort of a recapitulation of what we had talked about
Sunday.'' 251 While the Majority asserts that these
questions were an effort by the President to obtain Ms.
Currie's acquiescence to those propositions, the totality of
her grand jury testimony makes clear that she did not feel
pressured by her conversations with the President to change her
recollection of events; that she did not believe the President
wanted her to say ``right'' in response to his statements; and
that she agreed that the President and Lewinsky generally were
not alone because she was near the Oval Office on most
occasions when they met.252
---------------------------------------------------------------------------
\250\ Currie 1/27/98 GJ at 71-74.
\251\ Currie 1/27/98 GJ at 80-82.
\252\ Currie 7/22/98 GJ at 11, 22-23.
---------------------------------------------------------------------------
Ms. Currie testified as follows in the grand jury:
Q. You testified with respect to the statements as the
President made them, and, in particular, the four
statements that we've already discussed. You felt at
the time that they were technically accurate? Is that a
fair assessment of your testimony?
A. That's a fair assessment.253
---------------------------------------------------------------------------
\253\ Currie 7/22/98 GJ at 18.
---------------------------------------------------------------------------
The following exchanges also occurred:
Q. Now, back again to the four statements that you
testified the President made to you that were presented
as statements, did you feel pressured when he told you
those statements?
A. None whatsoever.
Q. What did you think, or what was going through your
mind about what he was doing?
A. At that time I felt that he was--I want to use the
word shocked or surprised that this was an issue, and
he was just talking.
* * * * * * *
Q. That was your impression that he wanted you to
say--because he would end each of the statements with
``Right?'' with a question.
A. I do not remember that he wanted me to say
``Right.'' He would say ``Right'' and I could have
said, ``Wrong.''
Q. But he would end each of those questions with a
``Right?'' and you could either say whether it was true
or not true?
A. Correct.
Q. Did you feel any pressure to agree with your boss?
A. None.254
---------------------------------------------------------------------------
\254\ Currie 7/22/98 GJ at 23.
Significantly, the President testified that when he learned
that Ms. Currie had been called to testify before the grand
jury, he said, ``Betty, just don't worry about me. Just relax,
go in there, and tell the truth.'' 255 The President
also testified that ``I didn't want her to, to be untruthful to
the grand jury. And if her memory was different than mine, it
was fine, just go in there and tell them what she thought. So,
that's all I remember.'' 256
---------------------------------------------------------------------------
\255\ Clinton 8/17/98 GJ at 139.
\256\ Clinton 8/17/98 GJ at 141.
---------------------------------------------------------------------------
Although the Independent Counsel interviewed the Paula
Jones attorneys, they studiously avoided asking them about
their intentions with respect to calling Betty Currie as a
witness. Moreover, the fact that she was never contacted, never
deposed, and never added to the witness list in any way, even
after the President's deposition, destroys this obstruction
charge.
In sum, the President had no reason to believe that Ms.
Currie would be a witness in any proceeding at the time he
spoke to her. In contrast, the President knew that once his
deposition testimony leaked, the White House would be
``deluged'' by the media.257 It is far more likely
that, when the President spoke to Ms. Currie, his goal was to
keep the media and the public from finding out about his
relationship with Ms. Lewinsky. Both the President and Betty
Currie, the only people involved in this event, both agree that
the conversation on January 18 was not about testimony, was not
intended to pressure her, and was caused by the inquiries from
the press, not for any litigation. The President's desire to
keep that relationship secret was obvious and understandable,
but not illegal, and certainly not grounds to justify
impeachment. The Majority's evidence falls far short of
establishing the existence of an obstruction of justice or
other impeachable offense.
---------------------------------------------------------------------------
\257\ Clinton 8/17/98 GJ at 132.
---------------------------------------------------------------------------
6. The President Did Not Obstruct Justice or Abuse his Power by Denying
to his Staff his Inappropriate Contacts with Ms. Lewinsky
The Majority alleges that the President obstructed justice
by lying to his staff or to the people around him about his
inappropriate contacts with Ms. Lewinsky, knowing that they
might repeat those statements in a grand jury. But the
President's statements to his staff on January 21, 23, and 26,
were made to protect his family from discovering his
relationship with Ms. Lewinsky. He could not have known then
that his staff would be called before the OIC's grand jury. The
President did not want to admit he had an inappropriate
relationship. This understandable desire falls far short of
establishing an impeachable offense.
The Referral lists the statements that the President
allegedly made to various aides, and then how the aides
testified to what the President said in their grand jury
appearances.258 When asked leading questions in the
grand jury, the President acknowledged that he assumed that
various staff members might be called to the grand
jury.259 Based only on that acknowledgment, the
Majority alleges a ground for impeachment.
---------------------------------------------------------------------------
\258\ Referral at 123-25, 198-203.
\259\ Clinton 8/17/98 GJ at 107.
---------------------------------------------------------------------------
However, in its fervor to construct an impeachable offense,
the Majority omits important details. First, what the President
was denying to his aides was the fact of his private, sexual
relationship. This was not comparable to enlisting aides in
misrepresenting the progress and success of our troops during
the Vietnam War, or misrepresenting the United States' efforts
to divert financial assistance from Iran to help the Contras in
Nicaragua, or misrepresenting involvement in the Watergate
burglaries. This was a man denying to those with whom he worked
that he was having an extra-marital relationship with a young
woman. The fact that the man was President, and the co-workers
were White House employees, should not elevate this everyday
occurrence into a constitutional crisis.
Second, the article does not allege, because there are no
facts from which to do so, that the President denied that he
had an inappropriate relationship with Ms. Lewinsky for the
corrupt purpose of influencing their grand jury testimony. But
the President's admission after the fact that some people he
talked with might be called to testify in the grand jury is not
the same as an admission that he intended those people to lie.
Indeed, the case cited by the Independent Counsel proves that
very point.260 Criminal convictions require that the
actor intend that a person lie. Not one of the individuals
identified in the Referral states that the President discussed,
or even suggested, that they should testify in any particular
way. The point of the President's conversation with the staff
had nothing whatsoever to do with the grand jury. It had to do
with denying an intimate relationship for the more obvious
reasons that these kinds of relationships are always denied. To
put the point most simply: does anyone really think the
President would have admitted to this relationship even if no
grand jury had been sitting?
---------------------------------------------------------------------------
\260\ See United States v. Bordallo, 857 F.2d 519 (9th Cir. 1988).
---------------------------------------------------------------------------
It is important to note that the President's statements to
staff were all made at a time when the media began its
firestorm coverage of the OIC's expansion of its jurisdiction.
Having announced to the entire country that he was not having a
relationship with Lewinsky, it is hardly remarkable that he did
the same with his staff. The President was not singling out his
staff--he denied the affair to everyone--so he was not
motivated by a desire to influence their grand jury testimony.
This denial comes nowhere close to meeting the threshold for an
impeachable offense.
D. Article IV Alleging Abuse of Power Fails To Establish An Impeachable
Offense
On November 5, 1998, the Majority sent the President a list
of 81 questions that it deemed relevant to its impeachment
inquiry. The President responded to those questions on November
27, 1998. The Majority has identified the President's responses
to ten of those questions 261 as being ``perjurious,
false and misleading,'' and constituting grounds for
impeachment.
---------------------------------------------------------------------------
\261\ The ten responses that form the basis for Article IV are
Numbers 19, 20, 24, 26, 27, 34, 42, 43, 52, 53.
---------------------------------------------------------------------------
The manner in which the Majority drafted Article IV causes
the Minority considerable concern. Originally, the Majority
publicly released a version of the article that contained four
clauses.262 Relying on allegations first propounded
by the Independent Counsel, the first clause alleged that the
President made misleading statements to the public concerning
his relationship with Ms. Lewinsky. Clause two asserted that
the President made false statements to aides concerning the
relationship knowing that the aides would repeat the statements
during appearances before the grand jury. Clause three
contended that the President improperly asserted executive
privilege to obstruct the OIC's investigation of him, while
clause four relied on the President's allegedly perjurious
responses to the 81 questions.
---------------------------------------------------------------------------
\262\ Indicative of the highly partisan nature of the process is
the fact that the Majority released its proposed articles of
impeachment to the public even as Counsel to the President, Charles
F.C. Ruff, was testifying before the Committee.
---------------------------------------------------------------------------
During the Committee's debate on Article IV, Rep. Gekas, a
member of the Majority, moved to amend the language of that
provision by removing the first three clauses and making
conforming changes to the preamble. The Gekas Amendment was
approved by a vote of 29 ``aye,'' 5 ``no,'' and 3 ``present.''
The Minority was hard-pressed to understand the reasons for the
Majority's sweeping changes to the article that it had proposed
just days earlier, and Rep. Schumer requested that the Chairman
explain the process by which the article was
drafted.263 The Chairman declined to do
so.264 In an interview with the Washington Post,
however, Rep. Hutchinson, a member of the Majority,
``emphasized that [the Article] had been written by staff
attorneys and that ``[i]t had never been debated [by the
Majority Members]. The [Majority] [M]embers never voted on
Article IV.'' 265 Thus, the Majority offered Article
IV even though no Member of the Majority actually voted for it.
---------------------------------------------------------------------------
\263\ 12/12/98 Tr. at 15.
\264\ 12/12/98 Tr. at 15.
\265\ Peter Baker and Juliet Eilperin, GOP Blocks Democrats' Bid to
Debate Censure in House, Wash. Post, Dec. 13, 1998, at A1.
---------------------------------------------------------------------------
The allegation that the President's responses to some of
the 81 questions constitute a ``misuse and abuse'' of his
office is curious. In its other articles of impeachment, the
Majority elected to charge perjury in the grand jury and
perjury during the Jones deposition without tying those
allegations to any supposed abuse of the Office of the
President. Even if one were to assume, for the sake of
argument, that the President's responses to some of the 81
questions were false, the Minority fails to understand how
those responses could constitute an abuse of power. The text of
the revised article reveals a desperate, and ultimately
unsuccessful, effort by the Majority to link the President's
responses to an official governmental function. The article
provides that the President's responses ``assumed to himself
functions and judgments necessary to the exercise of the sole
power of impeachment vested by the Constitution in the House of
Representatives and exhibited contempt for the inquiry.''
The Minority notes that the Majority's language in Article
IV is not accidental. During Watergate, Article III of the
articles of impeachment charged that President Nixon abused the
power of his office by failing to comply with subpoenas for
documents and things served on him by the Committee. The Nixon
article alleged that the President's failure to respond to the
subpoenas interposed the powers of the Presidency against
lawful subpoenas of the House of Representatives and, as the
Majority has alleged here, that the President ``thereby
assuming to himself functions and judgments necessary to the
exercise of the sole power of impeachment vested by the
Constitution in the House of Representatives.'' 266
Thus, the present-day Majority has attempted to conjure the
ghost of Watergate by couching what are, at best, additional
allegations of perjury in terms that are reminiscent of the
true abuses of power that occurred during Watergate.
---------------------------------------------------------------------------
\266\ Report of the Committee on the Judiciary, Impeachment of
Richard M. Nixon, President of the United States, House Rep. No. 93-
1305, 92nd Cong., 2d Sess. 4 (1974).
---------------------------------------------------------------------------
The Minority also takes strong exception to the Majority's
efforts to set a ``perjury trap'' for the President. ``A
perjury trap is created when the government calls a witness . .
. [to testify] for the primary purpose of obtaining testimony
from him in order to prosecute him later for perjury.''
267 Here, the responses on which the Majority relies
to support Article IV all involve subjects on which the
President testified either in his Jones deposition, or the
grand jury, or both.268 Over and over since his
testimony on those occasions, the President has acknowledged
that he misled the country, largely to spare himself and his
family the embarrassment of revealing his relationship with Ms.
Lewinsky.269 When the Majority propounded its 81
questions to the President, it knew that he would not change
his testimony simply to satisfy its demands. In essence, then,
the Majority has manufactured a count of impeachment against
the President simply by requiring him to respond, in writing,
to its demands for additional information.
---------------------------------------------------------------------------
\267\ United States v. Chen, 933 F.2d 793, 796 (9th Cir. 1991).
\268\ Response No. 19 (cover stories); 20 (knowledge of subpoena
served on Ms. Lewinsky); 24, 26, 27, 42, 43 (gifts exchanged with Ms.
Lewinsky); 34 (Ms. Lewinsky's affidavit) and 52, 53 (statements to Ms.
Currie).
\269\ See, e.g., 8/17/98 Tr. of Address to the Nation at 1.
---------------------------------------------------------------------------
The President's responses to the 81 questions make clear
that the Majority has not identified any new conduct of the
President that warrants impeachment. Every one of the ten
responses on which the Majority relies either quotes directly
from, or cites to, earlier testimony that the President gave on
the referenced subjects. Presumably, the Majority believes that
it would be free to manufacture additional articles of
impeachment simply by asking the President over and over again
about topics on which he is certain not to change his answers,
and then accusing the President of lying each time it did not
like his responses. In contrast to Watergate, where the
Committee premised its abuse of power allegations on President
Nixon's affirmative refusal to comply with Committee subpoenas,
the Majority here has simply bootstrapped what it believes to
be earlier instances of presidential perjury into a new abuse
of power article. The Minority completely rejects the
Majority's transparent effort to draw a parallel to the events
of 1974.
IV. The Credibility of the Impeachment Inquiry Has Been Compromised
Aside from the substantive problems we have with both the
lax standard of impeachment that has been applied by the
Majority, and the many errors in the culpability of conduct
identified, by the OIC, we are also concerned about the process
which has brought the House to this point. Our concerns derive
from both perceived unfairness and bias in the OIC
investigation as well as the Committee's inquiry.
A. Bias in OIC Investigation
The OIC's conduct has raised a great many doubts regarding
the fairness of an investigation which has brought this body to
the brink of an impeachment vote. Collectively, these actions
raise the question whether the OIC was motivated by an effort
to conduct an impartial investigation or by prosecutorial zeal
to damage a President. Our concerns arise from a number of
reasons.
First, many of our problems arise from the Independent
Counsel law, and its interaction with impeachment proceedings
in particular. The law gives little guidance or specification
regarding the manner in which impeachment referrals are to
occur. As already noted, in this case, the OIC chose to ignore
the Watergate precedent of special prosecutor Jaworski who saw
fit to provide only unedited grand jury transcripts to the
Committee. Instead, Mr. Starr developed his own impeachment
standards, and then went out of his way to argue the case for
impeachment to the Congress. It was just such authority that
allowed the Referral to be characterized as a ``referral with
an attitude.'' 270 Similarly, it was Mr. Starr's
unbending advocacy which caused his ethics adviser Samuel Dash
to resign the day after his congressional
testimony.271
---------------------------------------------------------------------------
\270\ Linda Greenhouse, Testing of a President, N.Y. Times, Sept.
12, 1998, at A1.
\271\ In his resignation letter, Professor Dash wrote:
I resign for a fundamental reason. Against my strong
advice, you decided to depart from your usual professional
decision-making by accepting the invitation of the House
Judiciary Committee to appear before the committee and
serve as an aggressive advocate for the proposition that
the evidence in your referral demonstrates that the
President committed impeachable offenses. In doing this you
have violated your obligations under the Independent
Counsel statute and have unlawfully intruded on the power
of impeachment which the Constitution gives solely to the
---------------------------------------------------------------------------
House.
Letter from Samuel Dash, Professor, Georgetown University Law
Center, to Kenneth W. Starr, Independent Counsel (Nov. 20, 1998).
---------------------------------------------------------------------------
Second, doubts have been raised regarding the
appropriateness of the initial selection of Mr. Starr by the
three-judge panel. Questions have been raised regarding the
propriety of a luncheon meeting between Judge Sentelle, a
member of the three-judge panel, and Senator Faircloth, one of
President Clinton's severest political critics, shortly before
Mr. Starr's appointment as Independent Counsel. Issues have
also arisen regarding the appropriateness of Mr. Starr's
continued representation of business interests, such as the
tobacco industry, who were involved in litigation directly
adverse to positions taken by the President. These concerns
were compounded when Mr. Starr tentatively accepted a lucrative
academic position at Pepperdine University which was largely
funded by Richard Mellon Scaife, another harsh critic of the
President.
Third, questions have been raised regarding the
appropriateness of Mr. Starr's advocacy in support of Paula
Jones with respect to constitutional issues arising in her
civil lawsuit against President Clinton. Prior to being named
Independent Counsel, a lawyer for Paula Jones approached Mr.
Starr about drafting an amicus brief arguing against the
President's claim of immunity in the Jones case,272
and Mr. Starr ultimately agreed to represent pro bono a
conservative women's group, the Independent Women's Forum, in
their filing of a legal brief opposing the President on this
matter.273 The representation of the Independent
Women's Forum did not end until August 8, 1994, four days after
Mr. Starr became Independent Counsel.274 Mr. Starr
also appeared on the MacNeil/Lehrer Newshour to argue against
the President's immunity claim.275
---------------------------------------------------------------------------
\272\ Impeachment Hearing on Inquiry Pursuant to H. Res. 581, 105th
Cong., 2d Sess. 119 (1998).
\273\ Id. at 123; Declaration of Daniel F. Attridge para. 13, Jones
v. Clinton (D.D.C.) (No. 98-042).
\274\ Decl. of Daniel F. Attridge para. 13, Jones v. Clinton
(D.D.C.) (No. 98-042).
\275\ MacNeil/Lehrer NewsHour: Presidential Immunity (PBS
television broadcast, May 24, 1994) (transcript available on Lexis).
Also raising concern is the fact that Mr. Starr, as a partner at
Kirkland & Ellis, was consulted by, and gave legal advice to, lawyers
for Paula Jones on approximately half-a-dozen occasions. Morning
Edition: Questions on Starr-Jones Connection (NPR radio broadcast, Oct.
15, 1998) (transcript available on Lexis). Richard Porter, another
Kirkland & Ellis lawyer and former aide to Vice President Dan Quayle,
was asked in May 1994, while the Independent Counsel was a partner
there, to serve as counsel to Ms. Jones; Mr. Porter declined the
representation but faxed the declaration of a Jones witness to the
Chicago Tribune. Second Decl. of Daniel F. Attridge para. 2, Jones v.
Clinton (D.D.C.) (No. 98-042). In addition, Mr. Porter suggested that
Nelson Lund, formerly a counsel to President Bush, represent Ms. Jones
in her lawsuit, but Mr. Lund declined the representation and instead
recommended Gilbert Davis and Joseph Cammarata. Robert Novak, Ex-Bush
Aides Helped Jones Find Lawyers, Chicago Sun-Times, May 15, 1994, at
41. Ms. Jones ultimately hired both Mr. Davis and Mr. Cammarata. Id.
---------------------------------------------------------------------------
A fourth concern arises from the fact that the OIC appears
to have been made aware of allegations of possible wrongdoing
at least one week before he sought to expand his investigation
into this area. Based on newspaper accounts and Mr. Starr's own
testimony, the following time line can be constructed.
--In mid-October of 1997, around the time when Linda
Tripp began illegally taping her telephone
conversations with Monica Lewinsky, someone placed an
anonymous phone call to the Rutherford Institute, the
conservative organization funding Ms. Jones's lawsuit,
saying that the President was having an
affair.276
---------------------------------------------------------------------------
\276\ Rene Sanchez & David Segal, Mysterious Efforts Permeate
Lewinsky, Jones Allegations, Wash. Post, Jan. 31, 1998, at A13.
---------------------------------------------------------------------------
--On November 21, 1997, David Pyke, one of Ms.
Jones's lawyers, called Ms. Tripp to say that Lucianne
Goldberg had contacted him about a woman having an
affair with the President.277 Ms. Tripp
confirmed for Mr. Pyke that she knew a woman who was
having a two-year affair with the President that
started when she was a White House
intern.278 When discussing her becoming
involved with the Jones lawsuit, Ms. Tripp told Mr.
Pyke that she should appear to be a hostile
witness.279
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\277\ Supplemental Materials to the Referral to the U.S. House of
Representatives Pursuant to Title 28, U.S. Code, Section 595(c)
Submitted by the Office of Indep. Counsel, Sept. 9, 1998, H.R. Doc. No.
316, 105th Cong., 2d Sess. 2531-32 (reprinting Lewinsky/Tripp Phone Tr.
005 at 91-102).
\278\ Id.
\279\ Id.
---------------------------------------------------------------------------
--On November 24, 1997, the Jones lawyers subpoenaed
Ms. Tripp.280 Ms. Goldberg, in January of
1998, began to explore how Ms. Tripp could contact the
OIC about the Lewinsky affair.281 Ms.
Goldberg contacted Mr. Porter, the Kirkland & Ellis
lawyer who had the opportunity to represent Paula
Jones, who, in turn, contacted Jerome Marcus, a
Philadelphia attorney.282
---------------------------------------------------------------------------
\280\ Alan C. Miller & Judy Pasternak, Starr's Office Let Tripp
Give Details to Jones' Lawyers, L.A. Times, Oct. 11, 1998.
\281\ Id.
\282\ Id.
---------------------------------------------------------------------------
--On January 8, 1998, Mr. Marcus called Paul
Rosenzweig, one of the OIC attorneys to convey Ms.
Tripp's information.283
---------------------------------------------------------------------------
\283\ Id.; The Independent Counsel testified before the Judiciary
Committee that ``[o]n January 8, an attorney in our office was informed
that a witness, who was Linda Tripp, who had been a witness in prior
investigations in our office, had information that she wanted to
provide. A message was conveyed back that she should provide her
information directly.'' Impeachment Hearing on Inquiry Pursuant to H.
Res. 581, 105th Cong., 2d Sess. 66 (1998).
---------------------------------------------------------------------------
--On January 9, 1998, Mr. Rosenzweig informed Deputy
Independent Counsel Jackie M. Bennett, Jr., what he had
heard about a White House intern and the
President.284 Also on that day, Ms. Goldberg
spoke to Mr. Conway to get Ms. Tripp a new, more
conservative lawyer; Ms. Tripp hired Mr. Conway's
recommendation, James Moody.285
---------------------------------------------------------------------------
\284\ Miller & Pasternak, supra.
\285\ Id.
---------------------------------------------------------------------------
--On January 12, Ms. Tripp finally called the OIC,
herself, and spoke to Mr. Bennett.286 That
night, the OIC promised to seek immunity for Ms. Tripp
from federal prosecution for the illegal taping; the
OIC also promised to help Ms. Tripp if state
authorities began to investigate the
taping.287
---------------------------------------------------------------------------
\286\ Id.
\287\ Id.
---------------------------------------------------------------------------
--On January 16, the Special Division gave permission
for the OIC to expand its jurisdiction into the
Lewinsky allegations.288 That day, the OIC
gave Ms. Tripp an immunity agreement to protect her
from federal prosecution for the taping.289
Knowing that Ms. Tripp had connections to the Jones
case, the OIC failed to include in her agreement a
clause that prevented Ms. Tripp from speaking to anyone
about the OIC's investigation.290 Ms. Tripp
spoke to the Jones's lawyers that night, after speaking
to the OIC and after leading the OIC to Ms. Lewinsky at
the Ritz-Carlton Hotel, thereby setting up the
President for his deposition in the Jones
case.291
---------------------------------------------------------------------------
\288\ Appendices to the Referral to the U.S. House of
Representatives Pursuant to Title 28, U.S. Code, Section 595(c)
Submitted by the Office of the Indep. Counsel, Sept. 9, 1998, H.R. Doc.
No. 311, 105th Cong., 2d Sess. 6 (1998) (reprinting January 16, 1998
Order of the Special Division).
\289\ Miller & Pasternak, supra.
\290\ Impeachment Hearing on Inquiry Pursuant to H. Res. 581, 105th
Cong., 2d Sess. 126 (1998).
\291\ Miller & Pasternak, supra.
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In particular, we are concerned that rather than
immediately reporting any of these facts to the Department of
Justice, Mr. Starr's office sought to create their own exigency
which left the Attorney General with little choice but to
approve his requested extension in jurisdiction. These concerns
are exacerbated by the fact that Mr. Starr failed to disclose
any previous contacts between himself and his firm and the
Jones legal team to the Department of Justice.292
---------------------------------------------------------------------------
\292\ When members of the OIC went to meet with the Deputy Attorney
General to seek permission to expand their jurisdiction to investigate
these issues notes were taken by participants at the meeting that were
released for the first time by the Committee on December 10, 1998.
Reference to those notes indicate that at no time did anyone from the
OIC even mention to the Justice Department that Mr. Starr or his firm
(1) had been contacted to be Ms. Jones's attorney, (2) had given legal
advice to Ms. Jones's attorneys, (3) had considered filing a brief on
Ms. Jones's behalf, or (4) had helped Ms. Tripp contact the OIC with
her illegally obtained tapes.
---------------------------------------------------------------------------
Fifth, an ongoing investigation into illegal grand jury
leaks by the OIC does not give us much further comfort. On June
19, Chief U.S. District Judge Norma Holloway Johnson issued an
order holding that ``serious and repetitive'' leaks to the news
media about the OIC's investigation of the Lewinsky allegations
justified an inquiry into whether the OIC broke the rule
barring dissemination of grand jury material.293
Subsequently, in a September 25, 1998 ruling, Judge Johnson
appointed a special master to conduct an independent
investigation of the alleged OIC leaks of grand jury material,
``[d]ue to serious and repetitive prima facie violations of
Rule 6(e).294 To date the court has identified 24
separate instances of possibly illegal grand jury leaks.
Whether or not one agrees with the OIC view that it is not
illegal to leak information which is merely likely to be
submitted to the grand jury, or the D.C. Circuit view that such
leaks are illegal,295 it is not difficult to see
that the better course of discretion in a politically charged
investigation such as this would have been to avoid leaking any
information.
---------------------------------------------------------------------------
\293\ Order to Show Cause, Misc. No. 98-55, slip. op. at 4 (D.D.C.
June 19, 1998).
\294\ In re Grand Jury Proceedings, Misc. No. 98-228, 1998 U.S.
Dist LEXIS 17290, at *32-*38.
\295\ It has long been the rule in the D.C. Circuit that the law
against disclosing ``matters occurring before the grand jury''
prohibits disclosing ``not only what has occurred and what is
occurring, but also what is likely to occur.'' In re Motions of Dow
Jones & Company, 1998 U.S. App. LEXIS 8676 (D.C. Cir. May 5, 1998)
(emphasis added) (quoting, SEC v. Dresser Indus., 628 F.2d 1368, 1382
(D.C. Cir. 1980).
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Sixth, we are concerned that the OIC may have violated
Department of Justice guidelines in gathering its evidence. The
Department of Justice rules provide that an attorney for the
government should not communicate with a targeted person who
government knows is represented by an attorney.296
At the time the Independent Counsel confronted Ms. Lewinsky at
the Ritz Carlton, she plainly was a target of the newly-
expanded investigation. Yet at that initial confrontation with
Ms. Lewinsky, the Independent Counsel tried to negotiate an
immunity deal with her without her lawyer, Frank Carter, being
present.297
---------------------------------------------------------------------------
\296\ DOJ Manual Sec. 9-13.240 (``an attorney for the government
should not overtly communicate, or cause another to communicate
overtly, with a represented person who the attorney for the government
knows is a target of a federal criminal or civil enforcement
investigation and who the attorney for the government knows is
represented by an attorney concerning the subject matter of the
representation without the consent of the lawyer representing such a
person.'').
\297\ These tactics also may violate Department of Justice policy
which prohibits federal prosecutors from contacting a represented
person to discuss an immunity deal without the consent of the attorney
representing that person. 28 CFR 77.8. This regulation is intended to
ensure that a person's right to counsel is respected. Under this
policy, the Independent Counsel never should have contacted Ms.
Lewinsky on January 16th and attempted to negotiate an immunity deal
with her, without the prior consent of her attorney Frank Carter. In
addition, the Independent Counsel may have violated Department of
Justice policy by forcing Ms. Lewinsky's mother, Marcia Lewis, to
appear twice before the grand jury. It is against Department of Justice
policy to subpoena close family member of targets before the grand
jury. U.S. Attorney's Manual Sec. 9-23.211.
---------------------------------------------------------------------------
Finally, and perhaps most seriously, we are deeply
concerned that the OIC intentionally omitted or downplayed
exculpatory evidence concerning President Clinton in its
referral. For example, even though Ms. Lewinsky appeared twice
before the grand jury, for a total of nine hours (plus a two
hour deposition after the President's grand jury testimony and
several more hours of OIC interviews), OIC prosecutors never
asked her to state for the record whether she was encouraged to
lie when she submitted her affidavit in the Jones case. It was
only when a grand juror happened to ask Ms. Lewinsky if she
would like to add anything to her testimony, that she stated,
``I would just like to say that no one ever asked me to lie and
I was never promised a job for my silence.'' 298
---------------------------------------------------------------------------
\298\ H.R. Doc. No. 311 at 1161 (reprinting Lewinsky 8/20/98 GJ at
105) (emphasis added).
---------------------------------------------------------------------------
Similarly, the Referral charges the President with
intentionally lying about having sexual relations with Ms.
Lewinsky. Yet, OIC prosecutors did not see fit to include in
the Referral the statement by Ms. Lewinsky that she does not
believe that she had sexual relations with the
President.299 In addition, the Referral charges the
President with asking Vernon Jordan to secure a job for Ms.
Lewinsky in order to keep her from revealing their relationship
when she testified in the Jones case. The Referral neglects to
mention Ms. Lewinsky's statement to the OIC's investigators
that ``LINDA TRIPP suggested to LEWINSKY that the President
should be asked to ask VERNON JORDAN for assistance.''
300 The Referral also fails to mention that Ms.
Lewinsky testified that Ms. Tripp told her, ``Monica, promise
me you won't sign the affidavit until you get a job. . . . Tell
Vernon you won't sign the affidavit until you get the job. . .
.'' 301 These same types of concerns animate the
problems we have with the OIC's failure to provide prompt
notice to the public of its determination to exonerate
President Clinton with regard to the Whitewater, Travel Office,
and White House file investigations. It became clear at our
hearings that the OIC had made this determination before the
November elections, yet failed to notify Congress or the public
of its findings.
---------------------------------------------------------------------------
\299\ Supplemental Materials to the Referral to the U.S. House of
Representatives Pursuant to Title 28, U.S. Code, Section 595(c)
Submitted by the Office of Indep. Counsel, Sept. 9, 1998, H.R. Doc. No.
316, 105th Cong., 2d Sess. 2664 (reprinting Lewinsky/Tripp Phone Tr.
0018 at 49).
\300\ H.R. Doc. No. 311, supra, at 1393 (reprinting Lewinsky 7/27/
98 OIC 302 at 5).
\301\ Id. at 902 (reprinting Lewinsky 8/6/98 GJ, at 182).
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B. Unfairness in Committee Investigation
1. Unfairness in Conducting Committee Inquiry
From the outset, Democrats have insisted that the process
for conducting the impeachment inquiry be fair and balanced. We
would be remiss if we did not acknowledge that in a few
respects we have been able to reach bipartisan accord on
procedural matters. For example, when the Majority chose to
announce oversight hearings on the History and Background of
Impeachment,302 and the Consequences of Perjury and
Related Crimes, we were granted a reasonable opportunity to
call our own witnesses. Also, we were able to reach accord
concerning permitting Committee staff to review certain
materials not initially provided to the Committee from the OIC,
and requiring the OIC to respond to additional questions posed
by the Members in writing. Chairman Hyde also granted Mr.
Conyers' request that the Committee consider a censure
alternative to impeachment.
---------------------------------------------------------------------------
\302\ Although this hearing should have been called far earlier in
the process.
---------------------------------------------------------------------------
Regrettably, these occasional displays of bipartisanship
were overshadowed by numerous other actions undertaken by the
Committee which were unfair to the Minority members of the
Committee, to the President, and, most importantly, to the
American people. All too frequently, partisanship, unilateral
decision-making, and fishing expeditions were the hallmarks of
this inquiry and damaged its credibility even before it
started.
As a threshold matter, we were unable to achieve bipartisan
consensus for the manner in which the inquiry was to be
conducted. When H. Res. 581, authorizing the Committee inquiry
was debated on the floor and at the Committee, Democrats
offered an alternative resolution which would have allowed for
an impeachment inquiry limited to the matters set forth in the
OIC Referral, provided for a full debate on the standards of
impeachment and a debate on whether the facts alleged rose to
that standard, and provided for an orderly process to hear
factual deadlines along with a tentative year-end deadline.
Unfortunately, the Minority proposal was spurned on each
occasion, the Majority sought no compromise, and the resulting
inquiry was unfocused and standardless.
We were also distressed by the Committee's complete failure
to consider the direct testimony of any factual witness. The
Committee gathered none of its own evidence and took testimony
from none of its own witnesses. This was compounded by the oft-
repeated statement that it is up to the Minority and the
President to call witnesses to establish his own innocence. As
a factual matter, this is incorrect--in contravention of the
Watergate precedent laid down by Chairman Rodino, the Majority
repeatedly rebuffed our efforts to obtain additional
evidentiary information.303 In any event, the
Majority position represents a breathtaking denial of the
President's right to the presumption of innocence and his right
to confront any witnesses making accusations against him.
Although the Committee is not bound as a matter of House Rules
to provide these protections, we believe it is incumbent upon
the Committee to provide these basic protections. As Rep.
Barbara Jordan (D-TX) observed during the Watergate inquiry,
impeachment not only mandates due process, but of ``due process
quadrupled.'' 304
---------------------------------------------------------------------------
\303\ For example, on November 9, Chairman Hyde rejected Mr.
Conyers request to issue subpoenas to obtain a variety of evidentiary
and witness material. On December 11, the Majority rejected Mr. Scott's
motion that the Committee establish a scope of inquiry and hear from
witnesses with direct knowledge of the allegations before considering
articles of impeachment.
\304\ Watergate Impeachment Inquiry, Book I, 349 (April 25, 1974),
cited in John R. Labovitz, Presidential Impeachment (1978) at 189.
---------------------------------------------------------------------------
Instead of calling witnesses in order to independently
assess their credibility, the Committee chose to rely in total
on the OIC Referral and accompanying grand jury transcripts
involving testimony solicited by the OIC attorneys. As we
describe in more detail above, a principal problem in relying
on the OIC Referral is that the case it makes out is largely
circumstantial, with many of the critical alleged criminal
elements provided by inference and surmise, rather than fact.
In addition, numerous aspects of the witness testimony are not
only confusing, but contradictory.
Conducting a presidential impeachment inquiry in the
absence of factual witnesses totally contravenes the
Committee's Watergate precedent. During the Watergate inquiry,
the Committee heard direct testimony from nine factual
witnesses. The Members were also confronted with massive
factual detail compiled by the staff, in the form of 650
``statements of information'' and more than 7,200 pages of
supporting evidentiary material, furnished to each Member of
the Committee in 36 notebooks. Committee Members heard
recordings from nineteen presidential conversations and
dictabelt recollections. Eventually, the Committee became privy
to a tape recording of President Nixon ordering the cover-up
the Watergate break in shortly after it occurred.305
None of these independent factual determinations have been
conducted in the present inquiry.
---------------------------------------------------------------------------
\305\ Impeachment of Richard M. Nixon, President of the United
States, H.R. Rep. No. 93-1305, 93rd Cong., 2d Sess., at 9, 166.
---------------------------------------------------------------------------
The fact that the Committee has received voluminous
materials from the OIC does not relieve us of our obligation to
conduct our own independent review of the facts. The
Constitution is clear in specifying that the ``House of
Representatives . . . shall have the sole Power of
Impeachment.'' 306 The Framers crafted this
requirement with good reason--impeachment as a political
process is intended to be subject to political accountability.
By contrast, the OIC is subject to no such constraints and no
such accountability.307
---------------------------------------------------------------------------
\306\ U.S. Const. Art. II, Sec. 2 (emphasis supplied).
\307\ See e.g., Julie R. O'Sullivan, The Interaction between
Impeachment and the Independent Counsel Statute, 86 Geo. L. J. 2193
(1998); Ken Gormley, Impeachment and the Independent Counsel: A
Dysfunctional Union, __ Stan. L. Rev. __ (1998).
---------------------------------------------------------------------------
Although the impeachment of a federal judge does not
provide the same weighty considerations as the impeachment of a
president, it is instructive to note that in such contexts the
Committee has chosen to call its own witnesses in order to
develop an independent case against the judge charged with
misconduct. For example, when Judge Nixon was impeached in
1989, even though he had already been convicted in a jury trial
with the full panoply of due process rights, the Committee
conducted seven full days of hearings during which nine
witnesses testified. An even more telling precedent concerns
the 1988 impeachment of Judge Hastings. His impeachment was
considered pursuant to a referral by the Judicial Conference
under 28 U.S.C. Sec. 372(c)(7)(B). Very much like the OIC
Referral, the Judicial Conference included a comprehensive
report of 841 pages, detailing a variety of potentially
impeachable conduct, and including a review of numerous
district court records, FBI files, Justice Department
investigatory files, grand jury materials, bank, financial and
other records, and the locating and interviewing of numerous
witnesses. Notwithstanding the magnitude and comprehensiveness
of the Judicial Conference Referral, during Judge Hastings'
impeachment the Committee opted to hold seven days of hearings
during which 12 witnesses testified. An additional 60 witnesses
were separately interviewed or deposed.
In failing to call any witnesses who could make out a case
against President Clinton and subjecting such witnesses to
cross examination, the Majority did not merely deny the
President of some trivial rules of procedure. Rather, the
Committee has undercut the very cornerstone of our nation's
sense of fairness and due process. Summarizing this long and
distinguished heritage, the Supreme Court wrote in 1895 that
the presumption of innocence ``is to be found in every code of
law which has reason, and religion, and humanity, for a
foundation. It is a maxim which ought to be inscribed in the
heart of every judge and juryman.'' 308 The
presumption of innocence has been traced to Deuteronomy, and
was embodied in the laws of ancient Rome, Sparta and
Athens.309
---------------------------------------------------------------------------
\308\ Coffin v. United States, 156 U.S. 432, 456 (1895).
\309\ Id. at 454.
---------------------------------------------------------------------------
The right to confront and cross-examine one's accusers is
specifically referenced in the Sixth Amendment to the Bill of
Rights.310 Justice Frankfurter has eloquently
written that ``[n]o better instrument has been devised for
arriving at truth than to give a person in jeopardy of serious
loss notice of the case against him and opportunity to meet
it.'' 311 The leading treatise on evidence, written
by Professor Wigmore, declares that ``[t]he belief that no
safeguard for testing the value of human statements is
comparable to that furnished by cross-examination, and the
conviction that no statement . . . should be used as testimony
until it has been probed and sublimated by that test, has found
increasing strength in lengthening experience.312
Significantly, these critical protections are not limited to
criminal trials, they have been afforded to parties in numerous
other legal contexts.313
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\310\ In all criminal prosecutions, the accused shall enjoy the
right . . . to be confronted with the witnesses against him.'' U.S.
Const. Amend. VI.
\311\ Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S.
123, 170 (1951).
\312\ 5 Wigmore on Evidence (3d ed. 1940) Sec. 1367.
\313\ See e.g., In re Gault, 387 U.S. 1 (1967) (due process
protections held to apply in non-criminal juvenile proceedings);
Goldberg v. Kelly, 397 U.S. 254, 262-63 (1970) (due process
requirements applicable in context of termination of welfare benefits).
---------------------------------------------------------------------------
When the allegations that the President undertook efforts
to obstruct Kathleen Willey's testimony led nowhere, the
Majority expanded the impeachment inquiry to include
allegations that the President violated federal campaign
finance laws.314 The Majority took this course
despite the fact that both the Senate Governmental Affairs
Committee and the House Government Reform and Oversight
Committee had investigated the same allegations to no avail.
The Republicans on the Judiciary Committee succeeded in their
motion to subpoena and depose FBI Director Louis Freeh and
Justice Department Campaign Finance Task Force Chief Charles
LaBella.315 The Republicans ultimately canceled all
campaign finance-related fishing expeditions.316
---------------------------------------------------------------------------
\314\ Juliet Eilperin & Ruth Marcus, Both Sides Harden Impeachment
Views: Widening of Probe Irks Democrats, Washington. Post, Dec. 2,
1998, at A1; Alison Mitchell, Panel Seeks Fund-Raising Memos, Stirring
Democrats, New York Times, Dec. 2, 1998, at A20.
\315\ Eilperin & Marcus, supra; Mitchell, supra.
\316\ Guy Gugliotta & Juliet Eilperin, Panel Gives Up Campaign
Probe, Washington Post, Dec. 4, 1998, at A1; Alison Mitchell,
Republicans Drop Bid to Investigate Clinton Campaign, New York Times,
Dec. 4, 1998, at A1.
---------------------------------------------------------------------------
The rationale for canceling the depositions would be
unclear except for the fact that, contemporaneous to scheduling
depositions, the Majority was making efforts to view memoranda
prepared by Director Freeh and Mr. LaBella for a Justice
Department investigation of the alleged campaign finance
violations. The U.S. District Court for the District of
Columbia, which controlled access to the memoranda pursuant to
a grand jury investigation of the alleged violations, issued a
ruling that allowed one staff member from the Majority side of
the Committee and one staff member from the Minority side of
the Committee to review the memoranda.317 It was
after the Majority reviewed the memoranda that the depositions
of Director Freeh and Mr. LaBella were canceled finally. The
decision to cancel the depositions in light of whatever
information was gleaned from the memoranda reveals that the
claims about campaign finance violations had no foundation--a
conclusion already reached by Attorney General Janet Reno in
her decision not to appoint independent counsels to investigate
either the President or Vice President Al Gore.318
---------------------------------------------------------------------------
\317\ Peter Baker & Juliet Eilperin, ``Vigorous Defense'' of
Clinton is Pledged, Washington Post, Dec. 3, 1998, at A1.
\318\ In addition, the following instances of procedural unfairness
occurred in connection with our inquiry:
(1) On September 11, 1998, the resolution relating to the release
of the OIC materials, H. Res. 525, was introduced in the absence of
bipartisan agreement. In particular, the Majority failed to offer the
President an opportunity to review and respond to the Referral before
it was released, and reneged on their promise that the initial review
of the materials would be limited to the Chairman and Ranking Member in
order to minimize the risk of damaging leaks.
(2) On September 15, 1998, the Majority unilaterally sought to
obtain access to a videotaped copy of the President's January 17
deposition in the Paula Jones case.
(3) On November 5, 1998, Chairman Hyde unilaterally issued a set of
81 questions to President Clinton for his response. The questions were
not approved by any other Member of the Committee, and no advance copy
was provided to the Minority.
(4) On November 17, 1998, the Majority rejected a request to grant
the President's lawyers two hours to question OIC Starr during his
testimony. No time limitation on questioning by President Nixon's
lawyers was over imposed during the Watergate Inquiry.
(5) On November 24, 1998, Chairman Hyde unilaterally sought to
requested that the Secret Service provide information regarding
discussions between President Clinton and his High School classmate
Dolly Kyle Browing at their 1994 high school reunion. Again, this
request was not approved by any other member of the Committee, and no
advance copy was provided to the Minority. Ultimately, out of 53
procedural and executive session votes taken by the committee 31 were
on straight or near party line votes.
---------------------------------------------------------------------------
2. Unfairness in the Drafting of the Articles of Impeachment
The Majority also failed to inform the Minority, the
President, or the public in any timely manner what the charges
against the President would be. The Referral, itself, listed
eleven acts that could constitute grounds for impeachment of
the President.319 At his presentation before the
Committee on October 5, 1998, Majority counsel, David
Schippers, listed fifteen acts that could constitute grounds
for impeachment.320 First, we heard there were
eleven charges, then fifteen, then eleven again, and then
three.
---------------------------------------------------------------------------
\319\ Referral from Independent Counsel Kenneth W. Starr, H.R. Doc.
310, 105th Cong., 2d Sess. 129-210 (1998).
\320\ Investigatory Powers of the Committee on the Judiciary with
Respect to its Impeachment Inquiry, H.R. Rep. No. 795, 105th Cong., 2d
Sess. 11-24 (1998).
---------------------------------------------------------------------------
This is in stark contrast with the Watergate inquiry, which
not only achieved significant bipartisan agreement on the final
articles of impeachment, but achieved even broader consensus on
the procedural fairness afforded President Nixon. This was
illustrated by the fact that immediately before the Committee
voted out impeachment articles, a bipartisan group of Members
appeared together on television and stated that the inquiry had
been conducted fairly and was nonpartisan.321 During
the Watergate inquiry, the chief Majority and Minority Counsels
(John Doar and Albert Jenner, Jr.) coordinated all
investigative work on a bipartisan basis, and both ultimately
recommended the course of impeachment to the Committee.
---------------------------------------------------------------------------
\321\ On July 21, 1998 Rep. Charles Wiggins (R-CA), Don Edwards (D-
CA), Walter Flowers (D-CA), and Robert McClory (R-IL) appeared on the
ABC television program ``Issues and Answers'' and stated that the
impeachment inquiry had been conducted fairly. For example, Rep.
Wiggins stated ``by and large it has been fair . . . I have no great
quarrel [with the investigation].'' 3 Facts on File Watergate and the
White House 210 (1974).
---------------------------------------------------------------------------
On December 9, 1998, the Majority introduced a tentative
draft of four articles of impeachment without having had one,
single day of hearings on the evidence. The Minority members
received this draft only one day before members were to comment
on them in open session and near the end of the day that
counsel to the President, Charles F.C. Ruff, made his
presentation to the Committee. The Majority often complained
that the President was ignoring official, Committee procedures
and attempting to delay the proceedings, 322 but the
Majority itself, failed to identify the charges until the last
minute.
---------------------------------------------------------------------------
\322\ Letter from Thomas E. Mooney, Sr., Chief of Staff, House
Comm. on the Judiciary, to Charles F.C. Ruff, Counsel to the President
(Dec. 6, 1998); Letter from Thomas E. Mooney, Sr., Chief of Staff,
House Comm. on the Judiciary, to Charles F.C. Ruff, Counsel to the
President (Dec. 3, 1998).
---------------------------------------------------------------------------
Throughout the impeachment process, the Majority has
resisted requests to narrow, define or state with precision the
allegations of misconduct leveled at the President. While the
Independent Counsel's Referral specified eleven possible
grounds for impeachment, the Majority Counsel, in his initial
presentation to the Committee, declined without explanation to
even present some of these grounds to the Committee (e.g.,
Independent Counsel's Grounds 10 and 11 alleging Abuse of
Power) . Instead, they rewrote, redefined, or restated the
eleven grounds described by the OIC into fifteen somewhat
similar, somewhat different allegations of criminal wrongdoing.
As an example, the Independent Counsel alleged that the
President obstructed justice by encouraging Lewinsky to file a
false affidavit in the Jones case.323 In his
presentation to the Committee on October 5, however, the
Majority Counsel transformed this straightforward allegation
into the central underlying factual element of no fewer than
five charges of criminal wrongdoing.
---------------------------------------------------------------------------
\323\ Referral at 173-80 (Ground VI).
---------------------------------------------------------------------------
This tactic, along with the Majority's subsequent abortive
forays into allegations relating to Kathleen Willey, Webster
Hubbell and campaign finance, engendered considerable confusion
about whether the grounds outlined in the Referral would, in
fact, continue to be the basis of any proposed articles of
impeachment. The articles of impeachment, when finally drafted,
returned to the original allegations and appear to confine
themselves to the charges relating to the President's
relationship with Ms. Lewinsky. Yet, although the OIC's
Referral listed specific allegations, even including the actual
statements the prosecutors alleged to be false when they were
making false statement charged, and although the Majority
Staff's original presentation also included specific charges,
the actual Articles of Impeachment abandoned such specificity.
Rather the Articles make vague charges, such as accusing the
President of making false statement about the ``nature and
details'' of his relationship with Ms. Lewinsky.
This lack of specificity reflects poorly on the
impartiality of the process and is totally inconsistent with
historical precedent. In the last presidential impeachment
proceeding, as pointed out by Rep. Alcee Hastings in his
December 9, 1998 letter to Chairman Hyde and Ranking Minority
Member Conyers, the Judiciary Committee took pains to ensure
that each article of impeachment was accompanied by detailed
statements of fact:
Both of you will recall that the Chair and the
Ranking Minority member (with the concurrence of the
Committee) directed John Doar, Special Counsel for the
Majority, and Albert Jenner, Special Counsel for the
Minority, to produce a comprehensive Statement of
Information in the inquiry into the conduct of
President Nixon. The Statement of Information that the
staff produced for that inquiry consisted of numbered
paragraphs, each of which was followed by photocopies
of the particular portions of the evidence that the
staff concluded supported the assertions made in that
paragraph. President Nixon was invited to and did
submit a further Statement of Information in the same
format. As a result, an organized, balanced, and
neutral statement of the facts and presentation of the
supporting evidence was a part of the Committee record
that was available for any Member to
review.324
\324\ Letter from Rep. Hastings to Hon. Henry Hyde, Chairman,
Committee on the Judiciary, and Hon. John Conyers, Jr., Ranking
Minority Member, Committee on the Judiciary, at 1 (Dec. 9, 1998).
---------------------------------------------------------------------------
A similar format was used to support the articles of
impeachment voted out against Judge Hastings.325 No
such effort has been made in this case to supply a detailed
road map of the supporting evidence for the articles of
impeachment.
---------------------------------------------------------------------------
\325\ Id.
---------------------------------------------------------------------------
To illustrate, in Article I, the charge is misleading
testimony concerning ``the nature and details of his
relationship,'' but the Article declines to identify which
statements are at issue. This lack of specificity would be a
grave constitutional defect in any indictment delivered by a
grand jury against any criminal defendant. This basic measure
of due process, however, has been denied to the President. It
is fair to presume that the Majority's unwillingness to
specifically identify the charges at issue are rooted in a
reluctance to make plain the essential triviality of the
allegations of personal misconduct at issue and the salacious
nature of the issues that the Senate would be condemned to
explore at trial. To have to state that the removal of the
President is based on his misstating when his relationship with
Ms. Lewinsky started, or how many times he had intimate
telephone conversations with her, or where he touched her would
demonstrate the frivolity of these charges for something as
grave as impeachment.
The Articles also display another unfairness; to the extent
that the Articles are occasionally specific, they are
unnecessarily duplicative. For example, Majority Counsel has
adopted the OIC's allegation that the President tried to
influence Ms. Lewinsky to file a false affidavit and lists it
in subparagraph 1 of Article III as an obstruction of justice;
yet, this same event is included again, renamed as perjury in
subparagraph 4 of Article I, as a matter about which the
President testified falsely during his grand jury appearance.
V. Censure is an Appropriate and Constitutional Alternative to
Impeachment
Throughout the proceedings, but especially during the
debate on the actual Articles of Impeachment, the Majority
attempted to blunt the impact of its decision. The Chairman
emphasized that ``impeachment is not the same as removal.''
Rep. McCollum even went so far, before he corrected himself, to
reassure the public by stating that a conviction of the
President in the Senate would not have to lead to his removal
from office. Both he and other Republicans called the House
vote on impeachment ``the ultimate censure.''
The Majority Member's statements underscore their
discomfort with what they were doing--they too realized that
President Clinton should not be removed from office for what,
in effect, were his misstatements about a private, extra-
marital relationship. Yet, the Majority has put the country on
a collision course with the constitution by insisting that
impeachment of the President is the only means to address
misconduct that is serious but falls below the standard for
removal.
There are, unfortunately, partisan reasons behind the
Majority's insistence that the House be given an impeachment or
nothing option. The Republican leadership understands that
there are many Members of both parties who believe that an
alternative to impeachment is appropriate. If such an
alternative were presented, Republicans would have another
means to express themselves on the issue of the President's
conduct. This, in turn, would siphon votes away from
impeachment--the resolution the leadership desires. Keeping its
Members in partisan line, however, should not be the motivation
behind a decision that prevents Members of the House to voting
their conscience. A censure resolution would provide lawmakers
on both sides of the aisle a constitutional and appropriate
alternative.
At the December 12, l998 Hearings, the Representatives
Boucher, Delahunt, Barrett, and Jackson Lee introduced a
resolution of censure addressing the President's conduct.
Almost all of the Democrats on the Committee voted for the
resolution and all expressed a desire that their House
colleagues have the chance to vote their consciences on this
issue. The resolution read:
Resolved by the Senate and House of Representatives
of the United States of America in Congress assembled,
That it is the sense of Congress that
(1) on January 20, 1993, William Jefferson Clinton
took the oath prescribed by the Constitution of the
United States faithfully to execute the office of
President; implicit in that oath is the obligation that
the President set an example of high moral standards
and conduct himself in a manner that fosters respect
for the truth; and William Jefferson Clinton has
egregiously failed in this obligation, and through his
actions violated the trust of the American people,
lessened their esteem for the office of President, and
dishonored the office which they entrusted to him;
(2)(A) William Jefferson Clinton made false
statements concerning his reprehensible conduct with a
subordinate;
(B) William Jefferson Clinton wrongly took steps to
delay discovery of the truth; and
(C) inasmuch as no person is above the law, William
Jefferson Clinton remains subject to criminal and civil
penalties; and
(3) William Jefferson Clinton, President of the
United States, by his conduct has brought upon himself,
and fully deserves, the censure and condemnation of the
American people and the Congress; and by his signature
on this Joint Resolution, acknowledges this censure and
condemnation.
Supporters of that resolution maintained that it would be
an appropriate way of bringing closure to events that have too
long diverted public and governmental attention from more
pressing issues. A vote of censure would condemn actions that
most members of Congress and the general public find
reprehensive but not impeachable. Such a formal censure could
then spare the country the wrenching disruption and policy
paralysis that would accompany a full trial in the Senate.
Opponents of censure raised both constitutional and policy
objections. The constitutional claim was that censure was not
mentioned in the Constitution as an alternative to impeachment.
In point of fact, numerous actions by Congress are not
explicitly mentioned in the Constitution and yet are
indisputably permissible under Congress's general authority.
Moreover, Congress expresses its sense on a wide range of
issues and the President's conduct would be no different.
Indeed, just this most recent Congress, the House expressed its
disapproval of President Clinton for: purportedly using White
House Counsel office resources for personal legal
matters;326 certifying Mexico under the Foreign
Assistance Act;327 and invoking certain evidentiary
privileges.328
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\326\ H. Res. 397.
\327\ H. Res. 58.
\328\ H. Res. 432.
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As to the two principal policy objections that Majority
members raised, they are inherently inconsistent. Some claimed
that a congressional reprimand would be weak and ineffectual.
Yet, others claimed that such an action would be capacitating
because it would deter the President from making policy
decisions that a congressional majority opposed. The first
argument is that a censure without penalties would constitute a
``toothless resolution,'' a ``copout.'' 329 The
converse argument is that a censure creates a dangerous
precedent that would threaten the independence of executive and
judicial officials and upset the separation of powers. Frequent
actions of condemnation by Congress could divert attention from
important legislative initiatives and open the way for
retaliation based on politically unpopular decisions.
---------------------------------------------------------------------------
\329\ Remarks of Representative Bill McCollum, 12/12/98 Tr. at 188;
remarks of Representative Elton Galleghy, 12/12/98 Tr. at 260.
---------------------------------------------------------------------------
The Minority pointed out how Republicans were arguing both
sides of the argument for their own political purposes. In
addition, Democratic Members noted that only one President has
ever been officially censured. This form of condemnation
scarcely has been the means to abuse the separation of powers.
The unique aspects of the current impeachment inquiry also
insure that this is not a step that Congress would take
lightly. This is obviously not a case in which Congress simply
disagrees with Presidential policy, as was true in some of this
nation's earlier censure controversies. At issue here is
misconduct that the President himself has acknowledged and that
a wide margin of the American public and its democratic leaders
find offensive. If it takes this type of conduct, followed by
this degree of consensus among Congress and the public, there
would be little to fear that this device would be abused in the
future.
The Majority's claim that censure would constitute a
meaningless wrist slap is equally unpersuasive. Representative
Barney Frank, speaking from his own painful experience, noted
in Committee hearings:
I am struck by those who have argued that censure is
somehow an irrelevancy, a triviality, something of no
weight. History doesn't say that. There are two members
of this House right now who continue to play a role who
were reprimanded for lying, myself and outgoing Speaker
Gingrich. We both were found to have lied, not under
oath, but in official proceedings and were reprimanded.
I will tell you that having been reprimanded by this
House of Representatives, where I'm so proud to serve,
was no triviality, it is something that when people
write about me, they still write about . . . for all of
us who are in this business of dealing with public
opinion, and courting it, and trying to shape it, and
trying to make it into an instrument of the
implementation of our values, to be dismissive of the
fact that the United States House of Representatives or
Senate might vote a condemnation as if that doesn't
mean anything? Members know better. I cannot think of
another context in which members would have argued that
a censure, a solemn vote of condemnation, would not
have meant very much. Certainly former Senators Thomas
Dodd and Joseph McCarthy would not have believed that
for a minute.
So too, as Minority members emphasized, a resolution of
censure against the President will be ``talked about for
generations and will live in history.'' 330
---------------------------------------------------------------------------
\330\ Remarks of Representative Boucher, 12/12/98 Tr. at 308.
---------------------------------------------------------------------------
A. A Censure Resolution Is Constitutional
The authority of Congress to pass resolutions expressing
condemnation is well established. Article I, Section 5, (d)(2)
of the Constitution authorizes both the House and the Senate
the power to punish Members for disorderly behavior. Although
the constitutional text provides no similar explicit authority
for condemnation of behavior by other individuals, Congress has
long assumed that it has such authority. The House and Senate
have considered at least a dozen resolutions condemning conduct
by executive or judicial officials.331 Some of the
resolutions use the term ``censure,'' while others use language
such as ``reproof'' or ``condemn.'' 332
---------------------------------------------------------------------------
\331\ Richard S. Beth, Congressional Research Service, Censure of
Executive and Judicial Branch Officials, Legislation Proceedings, 6
(Oct. 2, 1998) (hereinafter Beth); Jack H. Maskell, Congressional
Research Service, Censure of the President by Congress, September 29,
1998, 2-4 (hereinafter, Maskell). It is important to note that the
Majority repeatedly asked the Committee to turn to proceedings
involving federal judges to find precedents for impeachment. Yet, the
same Majority apparently now wants the Committee to ignore the fact
that Congress has used its censure power to condemn the actions of
these same judges when impeachment was too severe.
\332\ Censure is commonly defined as a legislative, administration
or other body reprimanding a person, normally one of the other members.
(Black's Law Dictionary 224 (6th Ed. 1990)).
---------------------------------------------------------------------------
The power to express such disapproval is rooted in
traditional legislative authority to register the sense of the
House, the sense of the Senate or the sense of
Congress.333 Congressional procedural rules have
long authorized the use of single or concurrent resolutions to
express legislative opinions on a wide range of
matters.334 All the members of this Committee have
voted for such resolutions.
---------------------------------------------------------------------------
\333\ Beth at 6, Maskell at 2-4.
\334\ William Holmes Brown, 134 House Practice; 4 Guide to the
Rules, Precedents & Procedures of the House (1996).
---------------------------------------------------------------------------
The vast majority of scholars, including over two-thirds of
the Majority and Minority witnesses who testified at the
Judiciary Committee's hearings, believe that a resolution
condemning the President, such as the one proposed during the
proceedings, would be constitutional.335 For
example, Harvard Law Professor Laurence Tribe has indicated,
that a straight censure resolution would be constitutional
``[b]ecause such resolutions entail no exercise of lawmaking
authority over the other branches of national government, no
exertion of legislative power over the state or local
governments, and no assertion of lawmaking authority with
respect to the lives, liberties, or property of individuals or
groups, they do not bring into play any of the Constitution's
substantive or structural limitations on the unauthorized
assertion of power by the national legislature.''
336 Similarly, the witness called by the Majority
and Minority, William and Mary Professor Michael Geahardt
concluded that ``every conceivable source of constitutional
authority--text, structure, and history--supports the
legitimacy of the House's passage of a resolution expressing
its disapproval of the President's conduct.'' 337
---------------------------------------------------------------------------
\335\ Letter of William D. Delahunt to Henry Hyde, Chairman,
Committee on the Judiciary, Dec. 4, 1998.
\336\ Letter from Laurence H. Tribe to William D. Delahunt, Dec. 1,
1998.
\337\ Letter from Michael J. Gearhardt to William D. Delahunt, Dec.
3, 1998.
---------------------------------------------------------------------------
Other experts in legislative affairs including the
committee on Federal Legislation of the Association of the Bar
of the City of New York, have similarly concluded that Congress
has authority to express its condemnation of presidential
conduct through means other than impeachment.338 The
Congressional Research Service has also stated that censure
would be constitutional: ``In the case of . . . federal
officials [such as the president] censure would be an exercise
of the implicit power of a deliberative body to express its
views, just as Congress may also express judgments of other
persons or events.'' 339
---------------------------------------------------------------------------
\338\ Association of the Bar of New York, Alternatives to
Impeachment: What Congress Can Do. Tribe Panel. See also authorities
cited in Maskell, supra; and David E. Rovella, Hyde Delay, Wrong on
Law, National Law Journal, October 5, 1998 at A6 (noting that surveyed
constitutional law experts generally agreed that censure was possible).
\339\ Beth supra. See also Maskell, supra (``It has, however,
become accepted congressional practice to employ a simple resolution of
one House of Congress, or a concurrent resolution by both Houses, for
certain nonlegislative matters, such as to express the opinion or the
sense of the Congress or of one House of Congress on a public matter,
and a resolution of censure as a concurrent or simple resolution would
appear to be in the nature of such a ``sense of Congress'' or sense of
the House or Senate resolution.'')
---------------------------------------------------------------------------
Another argument by some of the Majority was that a censure
resolution constituted an impermissible ``bill of attainder.''
There is no foundation for such a claim in the text, history,
and structure of the Constitution. Article I, Section 9, cl. 2
of the United States Constitution provides that ``no Bills of
Attainder or ex post facto law shall be passed.'' This
provision refers to acts by the British Parliament that
punished executive officials with death or forfeiture of
property. The American prohibition against non-judicial
punishment is designed to protect the life, liberty, and
property of citizens and the independence of executive and
judicial officials. As the Supreme Court has interpreted this
prohibition, a bill of attainder involves punishment inflicted
by legislative enactment against individuals or readily
identifiable groups without judicial trial.340
Censure resolutions passed by one House have not been viewed as
bills of attainder because they do not impose a penalty on the
life or property of the person being censured.
---------------------------------------------------------------------------
\340\ U.S. v. Brown, 381 U.S. 437 (1965); U.S. v. Lovett, 328 U.S.
303 (1946); Nixon Administration v. Administration of General Services,
433 U.S. 425, 468 (1977).
---------------------------------------------------------------------------
The course proposed by the Minority has ample precedent.
Resolutions of censure were proposed against Presidents John
Adams, John Tyler, James Polk, Abraham Lincoln, and former
President James Buchanan, and one was voted against President
Andrew Jackson.341 The censure of Andrew Jackson
occurred in 1834 over his earlier veto of the bill to renew the
Charter of the Second Bank of America and his dismissal of
Secretary of the Treasury William J. Duane, who had refused to
order the removal of federal deposits from the Bank.
Interestingly, the censure of President Jackson, which the
Majority condemns because it was later reversed, occurred on a
strictly partisan vote. It has been considered in history a
political event not reflecting on real or deserved rebuke for
Presidential misconduct. The Majority's willingness to impeach
President Clinton on strictly partisan votes in the Committee
more resembles the censure of President Jackson than does the
Democratic attempt in 1998 to forge a bi-partisan resolution of
this crisis.
---------------------------------------------------------------------------
\341\ The House of Representatives considered three resolutions
condemning John Adams for actions beyond his authority and for
interference with the judiciary. All three resolutions were proposed
from the floor and none were successful. The presidential conduct at
issue arose out of a dispute over extradition. In 1842, the House of
Representatives adopted a motion to agree to a select committee report
that condemned President Tyler for ``gross abuse of constitutional
power'' for vetoing appropriations bills passed by Congress. Congress
twice considered resolutions condemning James Buchanan for conduct
allowing political considerations and alleged campaign contribution
``kickbacks'' to influence government contracts and for his alleged
failures to prevent secessions from the Union of several southern
states. The proposed censure against President Lincoln responded to his
agreement to allow Francis P. Blair, Jr. to hold commissions in the
Army while also serving as an elected member of the House of
Representatives. There were also censure alternatives proposed
concerning President Nixon's conduct with respect to the Watergate
break-in and cover-up. Once clear and convincing evidence surfaced from
the tape-recorded conversations of the President's involvement with
abuse of government agencies, this resolution gave way to impeachment.
---------------------------------------------------------------------------
B. A Censure Of The President Is Appropriate
There is wide consensus among Americans that the
President's conduct should not go without some form of rebuke.
There is also wide agreement that impeachment is too severe a
penalty. Rather than ignoring the will of the people, Congress
should find a way to embody their sentiment. Early on in the
process, Representative Graham said: ``Without public outrage,
impeachment is a very difficult thing, and I think it is an
essential component of impeachment. I think that is something
that the founding fathers probably envisioned.'' 342
Mr. Graham was correct when he made that statement and the goal
of the Committee should have been to find an alternative that
reflected the public will. The view that censure is the
appropriate remedy is shared by Republicans as well as
Democrats. For example former President Gerald Ford, former
Republican Presidential candidate Robert Dole, and former
Massachusetts Governor William Weld, all support some form of
censure or rebuke as the appropriate action by the
House.343
---------------------------------------------------------------------------
\342\ 11/19/98 Tr. At 325.
\343\ President Gerald R. Ford, The Path Back to Dignity, New York
Times, Oct. 4, 1998, at D15; Robert Dole, A Tough but Responsible
Solution, New York Times, Dec. 15, 1998, at A31.
---------------------------------------------------------------------------
The consensus of concern about the President's conduct is
reflected in the resolution proposed by the Minority. It points
out the role of a President to set ``an example of high moral
standards and conduct himself in a manner that fosters respect
for the truth.'' It also underscores how President Clinton
``failed in this obligation, and through his actions violated
the trust of the American people, lessened their esteem for the
office of President, and dishonored the office which they
entrusted to him.'' Far from being a ``slap on the wrist'' or
mild rebuke, as some Majority Members have stated, this
resolution would stain President Clinton's place in history as
painfully as any Congressional action, short of removal from
office, could possibly do.
Members of the Committee also agreed that censure was the
proper response to the President's misconduct. Rep. Boucher, a
sponsor of the censure alternative, argued to the Committee
that the ``Framers of the Constitution intended that the
impeachment power be used only when the Nation is seriously
threatened[,]'' i.e., ``it is only to be used for the removal
from office of a Chief Executive whose conduct is seriously
incompatible with either the constitutional form and principles
of our government or the proper performance of the
constitutional duties of the Presidential office.''
344 As Rep. Boucher noted, the ``facts that are now
before this committee which arise from a personal relationship
and the effort to conceal it simply do not rise to that high
constitutional standard.'' 345
---------------------------------------------------------------------------
\344\ 12/12/98 Tr. at 169.
\345\ 12/12/98 Tr. at 169.
---------------------------------------------------------------------------
Rep. Boucher also argued that censure is ``preferable to
impeachment for yet another reason. ``. . . The President and
Congress will be diverted from the Nation's urgent national
agenda while a prolonged trial takes place in the Senate. The
Supreme Court will be immobilized all during that time as the
Chief Justice presides during the Senate trial.''
346 Rep. Boucher concluded that those ``harms are
not necessary'' because ``the Senate will not convict.''
347 He urged the Members to ``reach this sensible
conclusion, which more than any other approach will
simultaneously acknowledge our long constitutional history and
place this Nation, the Congress and the Presidency on a path
toward the restoration of dignity.'' 348
---------------------------------------------------------------------------
\346\ 12/12/98 Tr. at 171.
\347\ 12/12/98 Tr. at 171.
\348\ 12/12/98 Tr. at 171.
---------------------------------------------------------------------------
Similarly, Rep. Delahunt, another sponsor of the
resolution, argued that impeachment ``is not a punishment to be
imposed on Presidents who fall short of our expectations. It is
a last resort, an ultimate sanction to be used only when a
President's actions pose a threat to the Republic so great as
to compel his removal before his term has ended, not as a form
of censure.'' 349 Rep. Delahunt noted that the
Democratic resolution ``does not mince words. It denounces the
President's behavior sternly and unambiguously in plain, simple
English[,] [and] i[t] acknowledges that the President is not
above the law.'' 350
---------------------------------------------------------------------------
\349\ 12/12/98 Tr. at 180.
\350\ 12/12/98 Tr. at 181. Even Mr. Smith, a Member of the
Majority, acknowledged that the Democratic alternative was a ``serious
and strong resolution.'' 12/12/98 Tr. at 203.
---------------------------------------------------------------------------
In making a request that the Majority permit a vote on
censure on the House floor, Mr. Barrett observed that ``this
country will not accept a sanction that is not a bipartisan
sanction, it will continue to divide this country. And I say to
the proponents of Impeachment, if you want the Impeachment to
be accepted, there has to be a showing of good faith, a showing
that every single Member of this Congress was given the
opportunity to vote his or her conscience.'' 351
---------------------------------------------------------------------------
\351\ 12/12/98, Tr. at 318.
---------------------------------------------------------------------------
Finally, Rep. Jackson Lee, another sponsor of the censure
resolution, noted that the American people have ``now
challenged us to break this impasse. They have now risen to the
point of saying: Censure this President, rebuke him for his
wrong and horrible and intimidating conduct. He has hurt his
wife, his daughter, his family of Americans. Listen to us. Let
us be heard.352 Rep. Jackson Lee argued that
``[c]ensure is right for this Nation. It causes us to rise
above the political divide, and it is not unconstitutional.
Th[ere] is no prohibition in the Constitution, and it is right
for us to send this motion to the floor of the House.''
353 Rep. Jackson Lee urged that a vote for censure
is a ``[v]ote to heal this Nation[.]'' 354
---------------------------------------------------------------------------
\352\ 12/12/98 Tr. at 198.
\353\ 12/12/98 Tr. at 199.
\354\ 12/12/98 Tr. at 199.
---------------------------------------------------------------------------
A pillar of the American justice system is that the
punishment must fit the offense. The constitutional scholars
from whom the Committee heard all agreed that impeachment
should serve to protect the nation, not punish the offender.
For Congress to alter that process and impose the ultimate
political sanction of removal from office is without historic
precedent. If the Majority is to be taken at its word that it
wants to demonstrate that the President is not above the law,
then a censure resolution, which would serve as punishment, is
the proper means.
VI. Conclusion
After considering thousands of pages of constitutional
history, evidentiary findings, and testimony of witnesses, this
Committee should now be in a position to recognize not only
what impeachment is, but also what it is not. Impeachment is
not a means to express punitive judgements; it is not a vehicle
for policing civil litigation or grand jury proceedings; and it
is not a means for censuring immoral conduct. Other criminal
and judicial sanctions are available for that purpose.
Impeachment serves to protect the nation, not punish offenders.
As the preceding dissenting views makes clear, removing the
President on the basis of the record before us ill serves that
national interest.
Both Majority and Minority Members agree that removal from
office is appropriate only for conduct that falls within the
Constitutional standards of ``Treason, Bribery, or Other High
Crimes and Misdemeanors.'' By that standard, the evidence
before the Committee falls far short. Some four hundred of the
nation's leading historians, and a like number of
constitutional law scholars took the trouble to write to the
Committee expressing their view that the President's
misconduct, even if proven, would not satisfy constitutional
requirements for removal from office. As Harvard Law Professor
Lawrence Tribe's statement at the November 9 hearings made
clear, ``weakening the presidency through watering down the
basic meaning of ``high Crimes and Misdemeanors seems a
singularly ill conceived . . . way of backing into a new--and
for us untested--form of government.'' 355
---------------------------------------------------------------------------
\355\ Subcommittee Hearing, supra (written testimony of Laurence
Tribe).
---------------------------------------------------------------------------
Majority members of the Committee repeatedly insisted that
their role in impeachment proceedings was to protect ``the Rule
of Law.'' If so, the appropriate means would be adherence to
constitutional standards and basic requirements of procedural
fairness and due process. The Committee's own inquiry, and the
Independent Counsel's Referral, all far short of those
requirements.
As Minority Members of the Committee recognized, the
President is not above the law. But neither is he beneath its
protections. He is entitled to fair notice of the charges and
an unbiased investigation as to their support. The Independent
Counsel's Referral and the resulting Articles of Impeachment
provide neither. The ethical violations by OIC prosecutors and
their failure to provide the Committee with exculpatory
materials calls into question the quality and credibility of
the information they provided. Since the Committee itself
called no fact witnesses and conducted no independent
investigation, its record fails to supply the clear and
convincing evidence necessary to support impeachment.
In the long run, history will judge not only the conduct of
the President but the conduct of this Committee. Because its
proceedings fail to conform to fundamental constitutional
standards, Minority Members respectfully dissent.
John Conyers, Jr.
Barney Frank.
Charles E. Schumer.
Rick Boucher.
Jerrold Nadler.
Robert C. Scott.
Melvin L. Watt.
Sheila Jackson Lee.
Maxine Waters.
Martin T. Meehan.
William D. Delahunt.
Robert Wexler.
Steven R. Rothman.
Thomas M. Barrett.
IX. DISSENTING VIEWS
----------
DISSENTING VIEWS OF HON. JERROLD NADLER
While I am in substantial agreement with, and have signed,
the Minority Dissenting Views, I wish to clarify my thoughts on
the question of congressional censure of the President.
There is no question, as the Minority Views clearly
elucidate, that there is ample authority and precedent for the
Congress to censure a President, or to express its views,
favorable or unfavorable, on any topic.
Moreover, in this case, where a majority of the members of
the House of Representatives believes that the President's
conduct requires some action by the Congress short of
impeachment, it is unconscionable for the Majority to abuse its
control of this institution by preventing a vote on censure.
Plainly, this matter involves important questions of fact, law
and conscience. It is simply wrong to prevent members from
being able to vote according to the dictates of their best
judgement, conscience, and the concerns of the people who
elected them in what can only be interpreted as a cynical
attempt to coerce them into voting for impeachment by leaving
them no other option. They have a right to a choice between the
extreme and unjustified action of impeachment, and a less
radical expression of the Congress' and the nation's
disapproval as embodied in the motion of censure proposed by
Representatives Boucher, Jackson-Lee, Delahunt and Barrett. The
impeachment of a President was reserved by the Framers of the
Constitution for only the most severe threats against the
nation and our system of government. It exists as a remedy to
prevent the President from becoming a tyrant. It should not be
used for mere partisan purposes to overturn the will of the
people as expressed in two national elections. By providing no
alternative to impeachment, even an alternative which a
majority of the House, and of the American people deem more
appropriate, is little more than moral blackmail and unworthy
of this House.
When it was considered in the Judiciary Committee, I
supported censure, despite my reservations about the precedent
it would set, because of my strong conviction that members
should be afforded the opportunity to consider that option in
the full House.
Notwithstanding my view that censure is within the power of
the Congress, and that members should have the opportunity to
vote on the question, I nonetheless have strong reservations
about its use by Congress.
First, I oppose censuring the President for any alleged
deeds which have been neither admitted nor proven. The authors
of the censure resolution offered in the Judiciary Committee
took great care to avoid this error. It is disturbing that the
authors of the Articles of Impeachment failed to exercise the
same judicious care when they included vague charges based on
conjecture and testimony which has not been subject to cross-
examination.
Second, I believe that censure sets a worrisome precedent
to the extent that it would tend to undermine the comity and
relations between coequal branches of government. It would be a
regrettable legacy of this matter if Congress gets into the
business of issuing sweeping statements on the conduct of
future Presidents. In this case, a majority of the American
people and the members of this House believe that the
President's actions were wrong and deserving of condemnations.
The President has acknowledged his actions to his family,
before a grand jury, and to the nation. He has sought
forgiveness and national reconciliation. But, presidents often
do things that anger or offend Members of Congress or the
public. Presidents are answerable to the American people for
that conduct and, should their actions violate the law, they
are answerable in the courts. But to single out this president
for deception about a personal indiscretion disturbs me.
We did not censure George Bush when he lied to the nation
about being ``out of the loop'' in the Iran-Contra scandal or
when he said, ``Read my lips. No new taxes.'' President Reagan
was not censured for using members of his White House staff and
Cabinet to conceal the illegal acts in the Iran-Contra coverup,
nor was President Bush censured for issuing pardons to keep
those involved in that illegal conspiracy above the law.
With those reservations on the matter of censure, I join my
colleagues in the minority in dissenting. Impeachment,
especially impeachment forced on an unwilling nation by
partisan strong-arm tactics, will divide this nation for years
to come and undermine our democratic system of government.
Jerrold Nadler.
DISSENTING VIEWS OF HON. HOWARD L. BERMAN
The minority dissenting views make several important points
about the constitutional standard for impeachment and the
appropriate role of the House of Representatives in the
impeachment process. I strongly agree with the conclusion that
the President's conduct is not impeachable. Nevertheless, I
have elected not to sign the minority views because I believe
they place too much emphasis on attempting to prove that the
President did not lie under oath and possibly coach a potential
witness. In addition, while I am troubled by the conduct of the
Independent Counsel, I don't believe it should play a central
role in the impeachment debate. Rather, that conduct should be
investigated in the context of reauthorizing the Independent
Counsel statute in the 106th Congress. I have therefore decided
to submit my own dissenting views, which consists of my
December 10, 1998 opening statement made prior to the mark up
of the articles of impeachment:
Statement of Representative Howard L. Berman Before the Committee on
the Judiciary December 10, 1998
Thank you Mr. Chairman.
The often repeated mantra that everybody lies, certainly
everybody lies about sex, all Presidents lie, and many
Presidents have affairs must be addressed from this side of the
aisle.
It's certainly true that people sometimes lie, and that
people often lie about sex. It is also true that Presidents
have been known to lie and that some Presidents have had
affairs.
But that mantra has nothing to do with the issues before
us.
That mantra does not address the allegations of lying under
oath or coaching potential witnesses in legal proceedings in
order to evade responsibility for personal wrongdoing.
Our proceedings are too momentous to be bogged down by this
political spin.
What is an impeachable offense? A precise definition is
difficult to glean from the Framers of the Constitution,
American history or scholarship.
I find the best answer, albeit on a different subject,
contained in the concurring opinion of Supreme Court Justice
Potter Stewart from which I quote:
``. . . the court . . . was faced with the task of
trying to define what may be indefinable . . . I shall
not today attempt further to define the kinds of
material I understand to be embraced . . . and perhaps
I could never succeed in intelligibly doing so. . . But
I know it when I see it.''
Justice Stewart was ruling on the definition of obscenity--
not impeachment--and given his subject matter, some may think
this analogy too apt.
But, as regards the basic concept of what constitutes an
impeachable offense, for me, the logic applies: I know it when
I see it.
And on balance, given the totality of the wrongdoing, and
the totality of the context, this isn't it.
In fact, though reasonable people may disagree, I don't
think it's a close call.
The President's behavior that reflects so badly on the
Presidency and the country, the President's disregard for his
obligations as a law-abiding American, the President's refusal
to respect a common sense interpretation of the English
language . . . this conduct does not rise to the level that
justifies thwarting the public's mandate as expressed in the
1996 election.
My vote to oppose impeachment turns on three factors:
The first factor is though this is not just about sex, it
is colored by sex.
Second, and more importantly, impeachment must not be
pursued if the center of gravity of the body politic opposes
impeachment.
We are privileged to live in a unique and wonderful system.
Every four years, we come together to elect a President. This
is the defining moment in American political life and is
portentous in its implications.
Each American takes responsibility, and as a whole, all
America takes collective responsibility for the decision to
invest awesome power in this one person.
There must have been a reason why the Framers vested this
power of impeachment in a political body, the people's house--
the House of Representatives.
If they had wanted impeachment to be a non-political
decision, totally divorced from public opinion, they would have
vested the impeachment powers in the judicial branch.
The impeachment process must, at a minimum, pay some
deference to the totality of the people's views. Unlike every
other vote we cast where conscience may play a determinative
role regardless of public opinion, a vote for impeachment
cannot be blind to the views of those who vested power in the
President.
It would be very, very wrong to expunge the results of an
election for President of the United States without the
overwhelming consent of the governed.
It should not be contemplated--unless the wrongdoing is so
egregious as to threaten our form of government.
The third factor in my decision is the belief that the
corrosive effects on American society and America's legal
system of allowing the President to serve out his term have
been overstated.
It is true the President's defense is very troubling. His
grand jury testimony, his public statements following the grand
jury testimony, his agents' public statements, and his answers
to the questions submitted by the Committee are more serious
than any wrongdoing that caused this process to begin.
There is something Alice in Wonderland-like in watching
someone so smart and so skilled, so admired by the American
people for his intellect and his talents, digging himself
deeper and deeper and deeper into a rabbit hole, and us along
with him--and allowing him to escape accountability.
This troubles me greatly and I know motivates many of the
calls for impeachment.
People do have a right to ask, what will America's children
believe about lying, about reverence for the law, about lying
under oath? Will more Americans think it is ok to lie under
oath if the subject matter is sex, or if the subject matter is
embarrassing, or to evade civil liability in a sexual
harassment suit, or to evade criminal liability?
Many thoughtful Americans wonder whether the deconstruction
of our language--the hair-splitting--will damage the culture
even beyond the legal system. What will happen if words no
longer have common sense meaning--if everything is equally
true... or not true, because, after all, it depends on what
your definition of ``is'' is?
Of course there has been and will be harm to our culture
and the legal system.
But let's keep it in perspective. This is not a court of
law. We are not empowered to decide whether or not the
President should be indicted or convicted of a criminal
offense.
While not above the law, the President--the most powerful
man on the planet, the man who has control over our nuclear
weapons arsenal, the man whom we vest with the authority to
protect and defend the interests of the people of the United
States, indeed, protect all of civilization--is a special case!
Everybody is equal under the law. But we make special
provisions for one person while he's serving as President.
Few would dispute the fact that the President is immune
from criminal prosecution during his term of office. Many would
argue that a wise Congress should pass legislation to immunize
the President from civil litigation during his term of office.
We invest the Secret Service with the responsibility of
taking the bullet so our Commander in Chief will serve out his
term.
Most Americans can be criminally prosecuted at any time.
Most Americans can be civilly sued at any time. Most Americans
do not have a cadre of heroes providing personal protection for
them and their loved ones.
That the President's conduct is not impeachable does not
mean that society condones his conduct. In fact, it does not
mean that the President is not subject to criminal prosecution
after he leaves office.
It just means that the popular vote of the people should
not be abrogated for this conduct--when the people clearly do
not wish for his conduct to cause the abrogation.
The point is, most Americans know--and will instruct their
children to know--that conduct that may not be impeachable for
the president of the United States is not necessarily conduct
that is acceptable in the larger society.
Those who argue that the institutions of government, or the
fabric of our society will be irreparably harmed by a failure
to impeach the President, seriously underestimate the American
people.
America is too strong a society, American parents are too
wise, the American sense of right and wrong too embedded--to be
confused.
We all know that the word ``is'' has a common sense
meaning; We all know that lying under oath will get us in a lot
of trouble.
I have anguished over the question, were the facts the same
for a Republican President in a Democratically controlled
Congress, would I vote to oppose impeachment?
I pray that my decision would be the same, regardless of
party, regardless of political position.
I hope I've considered only what meets the Constitutional
standard and what is best for America.
I find the answer unambiguous. Impeachment must be
defeated.
Howard L. Berman.
DISSENTING VIEWS OF HON. ROBERT C. ``BOBBY'' SCOTT
I respectfully dissent from the section of the Minority's
views relating to the issue of censure. Although censure would
be Constitutionally permissible, I can not support censure
because of a number of policy problems I believe would be
created by adopting this censure resolution now.
I have complained from the beginning about the rank
unfairness of these proceedings. As a result of this unfair
process, we have an insufficient factual basis to support
impeachment and for the same reason, we have not established a
sufficient factual basis to support the conclusions drawn by
the proposed censure resolution. I opposed the structure of
this inquiry and supported instead the fair, focused and
expeditious process proposed by the Minority. That plan would
have specifically stated the allegations. We would then have
been afforded an opportunity to focus on those allegations, if
any, we believed to be constitutional. This stage would have
then been followed by a fact finding process and a logical
conclusion.
Instead of that fair process, we jumped from the
allegations to the conclusion that the President should be
impeached, skipping the focus and fact finding portions of the
rational inquiry. The so-called evidence for impeachment is
flimsy, because it is based on contradictory hearsay and
dubious inferences. This so-called evidence cited by the
Majority might have been proven true, but unfortunately we have
not adhered to basic principles of justice and tested that
evidence by the traditional ways we test the reliability of
evidence: through cross-examination and the opportunity for the
accused to rebut this evidence. The evidence before us has been
selected by Mr. Starr and consists mainly of answers to
questions posed by the prosecutors. It contains no additional
answers to questions posed by the President's lawyers nor any
rebuttal evidence. And, therefore, it is wrong to draw factual
conclusions from the uncross-examined hearsay and inferences
drawn by Mr. Starr without the opportunity for the accused to
provide any rebuttal. Thus, this process, which fails to
establish a factual basis for impeachment, also fails to
establish any appropriate factual basis for censure.
There are also serious policy implications when one co-
equal branch of government seeks to unilaterally punish another
branch, and this problem becomes even worse when there becomes
an expectation or responsibility to censure every time one
branch is outraged by the conduct of another branch. In
addition, while Articles of Impeachment are pending, it is
inappropriate to consider a censure resolution, because it
diverts attention from the reality that we are on the verge of
impeaching the President of the United States for charges that
are not supported by the evidence and wouldn't even be
impeachable offences, if they were true. Furthermore, it may
lower the bar for future impeachments even lower than the
standard we have today which a Majority witness at our
Impeachment hearing called ``low crimes and misdemeanors''.
That is because allegations which are clearly not impeachable,
but censurable, such as those before us now, would be deemed to
warrant a full fledged impeachment inquiry in the future.
Impeachment Inquiries are serious. In our partisan zeal, we
have diverted attention from other important issues, such as
religious freedom, juvenile justice, and immigration matters,
which could not be considered because we were focused on the
impeachment inquiry. This impeachment inquiry has unnecessarily
trampled on the rights of innocent citizens by releasing
embarrassing information, by issuing subpoenas for confidential
information, and by voting against a motion to appropriately
honor the attorney client privileges of witnesses called to
testify before the Committee. Impeachment inquiries should,
therefore, only be launched if there are credible allegations
of serious, impeachable offenses, not the lesser category of
offenses currently before the Committee.
In summary, because we have not had any rational fact
finding to prove any of the allegations before the Committee,
because co-equal branches of government should refrain from
censuring one another, and because censure might provoke future
impeachment inquiries with flimsy allegations such as those
before us, I cannot support censure in the impeachment context.
Bobby Scott.
DISSENTING VIEWS OF HON. ZOE LOFGREN
When I worked on the impeachment proceedings against
President Richard M. Nixon as a staffer, I was in awe of the
proceedings, of the responsibility, of the effort, of the
decorum of the members of Congress engaged in that solemn
undertaking.
I observed men and women struggle to overcome party
differences and loyalties in order to do what was fair and
right, in the interest of the nation, in honor of its history,
and as guardians of its future. I believe that's why the
country respected the actions taken by the 1974 Congress. An
inferior performance could have destroyed our system of
government. Instead, public men and women rose up to become
statesmen and stateswomen in a difficult hour.
Since before the referral of the Independent Counsel, I
have encouraged my colleagues to read the 1974 Judiciary
Committee staff report, which sets forth the Constitutional
grounds for impeachment adopted by the House in 1974. It is
against this constitutional standard that I have measured the
conduct of this President. The 1974 Report instructed us that:
``Not all presidential misconduct is sufficient to
constitute grounds for impeachment. There is a further
requirement--substantiality. . . . Because impeachment
of a President is a grave step for the nation, it is to
be predicated only upon conduct seriously incompatible
with either the constitutional form and principles of
our government or the proper performance of
constitutional duties of the Presidential office.''
When our Founding Fathers drafted the provisions in our
Constitution regarding impeachment and wrote the phrase,
``treason, bribery, or other high crimes and misdemeanors,''
they were concerned with wrongdoing directed against the state.
Treason is a crime against the state. Bribery is a crime
against the state--an attempt to corrupt the administration of
the state. During the Constitutional convention, in addition to
treason and bribery, George Mason and James Madison added the
phrase ``high crimes and misdemeanors,'' to the grounds for
impeachment. Their purpose was to allow impeachment to save our
democracy from other ``great and dangerous offenses,'' which a
Chief Executive might commit to subvert our constitutional form
of government.
The Founders were well aware of the tyranny of the Crown,
so they established the process of impeachment as a legislative
safety valve against a tyrannical executive. The Founders
designed this safety valve for abuses so grave that, in
Franklin's words, they suggested assassination as a remedy.
Impeachment was the Founders' civilized substitute. Under our
Constitution, since impeachment is a remedy for Presidential
tyranny, only acts of tyranny can justify impeachment. That may
explain why, after more than two centuries' experience in our
democracy, not a single President has been removed and only one
has been impeached.
It is clear that the Founders did not want the President to
serve at the pleasure of the Congress. That is why they
rejected a proposal that the President be impeached for
``maladministration'' because that would be equivalent,
according to Madison, ``to a tenure during the pleasure of the
Senate.'' That lesser standard would have unbalanced our
constitutional system of checks and balances, and created an
unstable parliamentary system rather than the stable system we
presently enjoy. Unlike so many other countries with
parliamentary systems, we don't suffer from a rapid succession
of governments, one after another, as votes of no confidence
drive out prime ministers who hardly have time to govern before
they are removed by votes of no confidence.
Alexander Hamilton reaffirmed the jurisdictional scope of
impeachment in Federalist No. 65 when he wrote that ``the
subjects of [the Senate's impeachment] jurisdiction are those
offenses which proceed from the misconduct of public men, or in
other words from the abuse of the violation of some public
trust. They are of a nature which may with peculiar propriety
be denominated POLITICAL, as they relate chiefly to injuries
done to the society itself.''
In 1974, Yale Law Professor Charles Black wrote a primer on
impeachment. Pointing out that plainly, not all regular crimes
were impeachable, Professor Black wrote:
``Suppose a president transported a woman across a
state line or even (so the Mann Act reads) from one
point to another within the District of Columbia, for
what is quaintly called an ``immoral purpose. . . . Or
suppose the president actively assisted a young White
House intern in concealing the latter's possession of
three ounces of marijuana--thus himself becoming guilty
of `obstruction of justice.' . . . Would it not be
preposterous to think that any of this is what the
Framers meant when they referred to `Treason, Bribery,
and other High Crimes and Misdemeanors,' or that any
sensible constitutional plan would make a president
removable on such grounds?''
Thus, Congress had established a standard to apply when faced
with the grave responsibility of considering impeachment of the
President. However, in 1998 we got off on the wrong foot and,
though some of us tried to correct course, we never got it
right.
It is unfortunate that Independent Counsel Kenneth Starr
did not proceed as cautiously as did Watergate Special
Prosecutor Leon Jaworski. When Jaworski forwarded grand jury
material to the Congress relating to President Nixon, he didn't
stage a press event. In fact, in 1974 no material forwarded to
the Judiciary Committee was made public until the committee and
the President had a chance to review it. Former Watergate
prosecutor Richard Ben-Veniste advised some Members of the
Committee in September that the only thing Jaworski sent with
the grand jury material was an index; and that index and most
of the grand jury material referenced in that index have
remained secret to this day.
When we got Starr's Referral, I believed that, at a
minimum, we should have read what it said, and discussed it,
before we released it to the nation. Instead, we released the
Referral and this was followed in fast succession by thousands
of pages of additional material that the nation need not have
seen. We justified this wholesale release by insisting that the
people had a right to know, presumably so they could be
persuaded by the facts and constitutional standard as to what
was the right course to follow.
From the outset, I subscribed to what several of the
members called, ``a yardstick of fairness,'' by which we would
measure the conduct of the Committee. Our best yardstick of
fairness was our historical experience. We had to compare the
procedures we used today with what Congress did a generation
ago, when a Republican President was investigated by a
Democratic House. Because of the thorough, deliberative
procedures used during the Watergate proceedings the ultimate
result was not only fair but was perceived to be fair. If we
failed to follow this example, I was concerned that we would
abdicate the solemn duty that the Constitution had entrusted to
us and to us alone. If we fell short of that yardstick of
fairness, the American people would correctly see the cause as
partisan. I said in the beginning that the damage would be to
our country and to our system of government.
While our system of government is based on openness, we
repeatedly hid behind closed doors to conduct our business. The
House Judiciary Committee met to decide what salacious material
to make public but for the most part instead engaged in
spirited debate about the Constitution, fairness, our country,
and our future. All motions made to open the meeting or to
release the transcripts of executive sessions were voted down
by the Republican majority.
How ironic that the public was barred from knowing what
Committee members said about the Constitution and due process
while we deluged that same public with lurid materials in the
name of openness and informing the public's discretion.
We should have spent more time reading what George Mason
and James Madison said to each other than what Ms. Lewinsky and
Ms. Tripp said to each other.
The Minority members co-sponsored a proposal that would
have been fair, limited in scope and time, and logical,
starting with a consideration of the impeachment standard and
whether any of the allegations forwarded by the Independent
Counsel met that standard. If we needed more time, for any
reason, the Committee could ask for more time. If the
Independent Counsel sent another Referral, the Committee could
consider it consistent with the statute. I am proud to have
played a key role in the development of the ``fairness
alternative.''
The Majority, however, preferred instead an open-ended
investigation without any deadline at all. The Democratic
Minority preferred a prompt and fair inquiry. The Committee and
the House were to split on party lines.
On October 8, 1998, I rose on the floor of the House in
opposition to any unfair impeachment inquiry, and said,
``I fear what Alexander Hamilton warned against in
[the] Federalist . . . [that] there will always be the
greatest danger that the decision [to impeach] will be
regulated more by the comparative strength of parties
than by the real demonstrations of innocence or guilt.'
''
I said, ``the question is not whether the President's
misconduct was bad. We all know that the President's misconduct
was bad. The question is, are we going to punish America
instead of him for misconduct? Are we going to trash our
Constitution because of his misconduct?''
Since that day we have not heard a single fact witness in
Committee, either in public or executive session, although
there is no question there are many conflicts in the hearsay
documentation provided us by the Independent Counsel. One
example of the many conflicts in the evidence is who, if
anyone, told whom to get what gifts for what reason. The
President has a quite credible explanation that he would not be
telling someone to conceal the gifts he gave her--even as he
was giving her more gifts. There is only one way to resolve
such conflicts, if indeed the facts are material to our
inquiry, and that is to question the witnesses. However, we
questioned no one with direct knowledge of any of the facts.
Under the circumstances, I have had to compare the evidence
that can be gleaned of the President's tawdry affair and cover-
up with the Majority's recommended resolution, that we remove
him from Office. My conclusion, in reliance on constitutional
standards, is that we have clearly lost all sense of
proportion. These Articles of Impeachment do not comport with
the standard set by our Founding Fathers. They did not mean for
us to remove a president for lying about private sexual
misconduct, especially when we can prosecute him--if he has
committed a crime--when he leaves office.
We do not condone the President's behavior--but impeachment
is not the remedy for bad behavior. For that we have courts. If
those who seek to hound the President from office believe they
have a criminal case against him, then let him pay the penalty
of a conviction after he leaves office, if they can get a jury
to agree. That is our system of dealing with all but ``high
crimes and misdemeanors''.
Our task has not been made any easier by the way the
Majority wrote these Articles. The Committee majority refused
to state the specific perjurious statements by which they would
have us judge the President. This solemn occasion demands
perfect clarity and at least the same due process which would
be granted to any person accused of a crime. But the Congress,
and the President, are left to guess about the exact nature of
what he is supposed to have done wrong.
My friends, neighbors, and even complete strangers approach
me in my District to tell me what they think is going on. They
call this a coup d'etat. They say that a runaway majority of
the House of Representatives seems bent on overturning the
result of a democratic election, because they don't like the
result.
It is significant that the people we represent were not
persuaded that the Majority was doing the right thing. I
believe in the American people, and their views on this have
been remarkably steady. The opinion of the people may not be
determinative of the issue, but it is certainly relevant when
we propose to overturn the last two national elections.
When I questioned the fairness of the proceedings in
September, the Chairman commended an article by Professors
Edwin Firmage and R. Collin Mangrum from the 1974 Duke Law
Journal, starting at page 1023, and titled, ``Removal of the
President.'' At pages 1044 and 1045, the Professors explained
that the public's opinion matters so that Congress' action may
be legitimate and perceived as legitimate:
``The legitimacy of a democratic government must be
established in the minds of the people; thus, if a
transfer of presidential power is to be accomplished by
. . . removal . . . in the face of impeachment, the
legitimacy of the new administration can only be
assured by public recognition that the previous mandate
has clearly expired.''
This same article, at page 1029, states that the
impeachment process, while ``fundamentally political,'' was
``designed to protect the foundation of the state itself--not
to create a sanction for misjudgment or to settle disputes over
policy, both appropriately dealt with through the electoral
process.''
I am troubled that we have endangered the legitimacy by
which we govern this nation. We lost our way in the Committee.
I hope we may find it when we reach the floor of the House. I
hope and trust that the views of the people will inform the
judgment of my colleagues before they vote this week. The
people say what they think and they vote accordingly. I hope my
colleagues may be free to do the same.
In this regard, I sincerely believe we should be permitted
to consider censure. There is no constitutional prohibition
against it. It has been used to some historical effect to
rebuke other Presidents, particularly President Andrew Jackson.
The Majority has supported such resolutions on a variety of
other issues. Thus, we must ask ourselves why they have
ruthlessly prevented a floor vote on the alternative of censure
as the appropriate sanction. In doing so, the Majority has
effectively disenfranchised those members of both parties, like
myself, who feel that rebuke and condemnation is appropriate
but impeachment is not.
Taking another backward glance, I have to say that, unlike
my experience as a staffer during the 1974 impeachment
proceedings, I can't say that the men and women I've observed
in these proceedings have overcome party differences and
loyalties in order to do what was fair and right in the
interest of the nation. If courage is a rare flower this wintry
season, as some suggest, this Congress shall likely become a
humiliating object lesson for unborn historians to describe how
this legislative assembly, riven by partisan differences,
compromised rather than preserved the Republic.
The Constitution provides impeachment to protect America
from subversion of the Constitution. How ironic that, in this
instance, it is Congress' political misuse of impeachment that
threatens our Constitution, rather than the tawdry misconduct
of the Chief Executive.
If the House votes to impeach, and unless voters engage in
massive punishment of the Republican perpetrators, it is
inevitable that impeachment will become the routine tool of the
losing party. They will seek to win in the House what they
cannot gain in the polling booth. Our country will lose much
that has made it strong in that process. I am deeply troubled
and saddened that the Republican party would inflict such
injury to our country to achieve this short term political
goal.
Zoe Lofgren.
DISSENTING VIEWS OF HON. SHEILA JACKSON-LEE
A. Standard for Impeachment
George Mason, a Framer of the Constitution, stated that
``high crimes and misdemeanors'' refers to Presidential actions
that are ``great and dangerous offenses'' or attempts to
subvert the Constitution.'' This is the proper standard for
impeachment. James Hamilton, a former Assistant Chief Counsel
for the Senate Watergate Committee, defined impeachment as ``a
crime against the state.'' An impeachable offense must relate
chiefly to official injuries done to society. Another one of
our Founding Fathers Alexander Hamilton wrote in the Federalist
Papers No. 65 that,
Those [impeachable] offenses which proceed from the
misconduct of public men, or, on other words, from the
abuse or violation of some public trust. They are of a
nature which may with peculiar propriety be dominated
POLITICAL, as they relate chiefly to injuries done
immediately to society itself.
As Hamilton makes clear, criminal conduct alone was and is not
enough. The conduct also should involve public office. That
should be the standard here as we proceed.
B. Article I--Perjury Grand Jury
This Article of Impeachment focuses on the testimony that
the President gave to Independent counsel's grand jury on
August 17, 1998. First, it is necessary to discuss what is
necessary to garner a perjury conviction in federal courts.
First, you must prove that a false statement was made with
specific intent. That means that the prosecutor must prove that
the declarant had a subjective awareness that his statements
were lies. That means, no matter how false a statement is, if
the person saying it believes he is telling the truth, then he
cannot be found guilty of perjury. Because we have seen no
conclusive evidence that the President believes he was, indeed,
lying--this charge is simply unwarranted. Second, the false
testimony must be about material facts.
I would also like to point out another principle of
American law that is pertinent to this perjury allegation. The
principle is that the unresponsiveness, the evasiveness, of a
witness is not per se perjurious.\1\ The burden is on the
interrogator to elicit the clear statements that will be used
as the basis of their case. And although every defendant is
required to be truthful on the stand, there is no requirement
that they be helpful to the prosecutor. Courts have
continuously rejected perjury charges where there is more than
one way of understanding the meaning of a question.\2\ When
asked if he engaged in ``sexual relations'' with Monica
Lewinsky, it is clear that the President was answering within
the confines of the narrow definition that was given to him. I
think we should all be concerned whether this is enough to
support a perjury conviction, and then rises to an impeachable
offense.
---------------------------------------------------------------------------
\1\ U.S. v. Bronston, 409 U.S. 352 (1973).
\2\ U.S. v. Finucan, 708 F.2d 838, 848 (1st Cir. 1983); United
States v. Lighte, 782 F.2d 367, 375 (2d Cir. 1986).
---------------------------------------------------------------------------
C. Article II--Alleged False Statements Under Oath in the Jones
Deposition
One of the primary allegations of perjury arising from
President Clinton's deposition testimony of January 17, 1998,
appears to be that he lied under oath about the nature of his
relationship with Ms. Lewinsky when he denied in that civil
case that he had a ``sexual affair,'' a ``sexual
relationship,'' or ``sexual relations'' with Monica Lewinsky.
Webster's Dictionary, Random House, and Black's Law dictionary
all define sexual relations as intercourse. But even if you do
not believe that sexual relations does not specifically mean
intercourse, there is strong evidence that this is what
President Clinton believed. This Article should have been
summarily dismissed and voted down because there are just too
many holes and not enough clear and convincing evidence that
the President committed perjury during the Jones deposition.
D. Article III--Obstruction of Justice
Monicia Lewinsky's Grand Jury testimony clearly refutes
allegations that President Clinton encouraged her to give
perjurious, false and misleading testimony, ``Neither the
President nor Mr. Jordan asked or encouraged me to lie.'' This
statement by Ms. Lewinsky was made in her February 1, 1998,
proffer to the Office of Independent counsel. President
Clinton's relationship with Lewinsky was consensual but morally
wrong. On the other hand, Ms. Jones was alleging sexual
harassment. Lewinsky's relationship with President Clinton was
a tangential collateral issue that was not relevant. Therefore,
the probability of its admittance at trial was unlikely because
it would not have ``any tendency to make the existence of any
fact that is of consequence to determination of the Jones
action more probable.'' There is no concrete evidence to
substantiate the allegation that President Clinton encouraged a
witness to execute a false affidavit.
Article III further alleges that on or about January 18 and
January 20-21, 1998, President Clinton related a false and
misleading account of events relevant to a federal civil rights
action brought against him to a potential witness in that
proceeding.
E. Article IV--Abuse of Power
In 1974, the Judiciary Committee drafted three Articles of
Impeachment against President Nixon. Article II charged Richard
Nixon with ``using the powers of the office of the President of
the United States, in violation of his constitutional duty. . .
abuse of power. He has repeatedly engaged in conduct impairing
the due and proper administration of justice and the conduct of
lawful inquiries, or contravening the laws governing agencies
of the executive branch and the purposes of these agencies.
Here, there was use of official power and therefore abuse of
power.
Article IV purports to enumerate ``conduct that resulted in
misuse and abuse of his high office'' and credible information
that President Clinton's actions since January 17, 1998,
regarding his relationship with Monica Lewinsky have been
inconsistent with President's constitutional duty to faithfully
execute the Laws.'' It is implausible that one of the counts of
Article IV is that ``The President misled the American people
and the Congress in his public statement on August 17, 1998,
when he stated that his answers at his civil deposition in
January had been ``legally accurate.'' ABUSE OF POWER REQUIRES
USE OF POWER! When the President misled the American public on
August 17, it was not illegal nor impeachable. There is no
evidence that the President's cabinet members were required or
instructed to relate information about non-official business to
the news media. Further, if we follow this argument to its
logical conclusion an individual would be required to maintain
``ownership of the original conversation.'' There was no use of
power by the President, therefore there was no abuse of power.
F. The Need For a Resolution of Censure
President Clinton's conduct, although wrong, should Not be
regarded as an impeachable offense because it was not the
product of an illegal use of power or a breach of the public
trust as suggested by the Framers of the Constitution. In 1691,
Solicitor General Somers told the British Parliament that ``the
power of impeachment ought to be, like Goliath's sword, kept in
the temple, and not used but on great occasions.
Censure is neither a substitute for a federal pardon nor is
it a cover-up. Therefore, the President is still subject to
civil and criminal punishment for any alleged crimes he may
have committed by the court system after he leaves office. The
United States Constitution does not prohibit censure. However,
several critics continue to suggest that censure is
unconstitutional because there is no constitutional provision
that expressly authorizes censure. Censure is a sensible
historically proven solution for addressing the President's
disturbing behavior. It is time for America to move forward; it
is time to put this unsettling controversy and divisiveness
aside; it is time for the business of the American people to
take first priority.
G. Conclusion
President Clinton's behavior was reprehensible and lacking
poor judgment, but it must meet the high constitutional test of
a high crime or misdemeanor. . . for it does not, then congress
bears the burden of giving the President, or the accused ``an
honorable acquittal.'' It must be non-partisan and rational
because we are all duly sworn to uphold the Constitution which
was written to ``form a more perfect union.''
Sheila Jackson-Lee.
DISSENTING VIEWS OF HON. MAXINE WATERS
On Friday and Saturday, December 11 and 12, 1998, the House
Judiciary Committee embarked on the extraordinary procedure of
voting to report from this Committee four articles of
impeachment against President William Jefferson Clinton.
Let history record, I, Maxine Waters, member of Congress
representing the 35th Congressional District of the United
States of America, is of sound mind, excellent health and a
clear conscience. Let history further record that I direct my
remarks to my children Ed and Karen to my grandchildren Mikael
(20 years of age) and Cameron (10 years of age), to my mother
Velma Lee Moore, my 12 brothers and sisters (living and dead),
my husband, Ambassador Sidney Williams, my dear friends and
supporters, my constituents and the American people:
I did not violate the Constitution of the United States. I
voted no on each and every vague and general article of
impeachment presented by this committee. Let history record
that I fought against the impeachment of the President of the
United States in every way that I know how, that my Democratic
colleagues have shown in every possible way that President
Clinton did not commit perjury, obstruct justice or commit any
actions or crimes that rise to the constitutional level of
impeachment.
Let history treat me kindly as our children and children's
children analyze what we did here in this Committee. Let the
historians speak favorably of me because I carefully,
honorably, and responsibly exercised my duty to uphold the
Constitution of the United States. So help me God!
Maxine Waters.
DISSENTING VIEWS OF HON. MARTIN T. MEEHAN
I write separately to state clearly my own views on the
Majority's attempt to impeach President Clinton, though I do
agree with most of the conclusions contained in the Minority's
dissenting views.
President Clinton had an adulterous relationship with
Monica Lewinsky, which for understandable reasons, he strove to
conceal. His attempts at concealing that relationship long pre-
dated Ms. Lewinsky's involvement in the Paula Jones civil case
but ultimately came to include answering questions posed to him
under oath in a deceptive manner. Contrary to the sweeping
conclusions of the Majority, that deception occurred largely
within the boundaries of the law. Yet I do suspect that the
president's statements crossed the line on a few occasions,
most prominently regarding precisely where he touched Ms.
Lewinsky.
Thus, the president engaged in shameful conduct, breaking
faith not only with his family but also with the American
people. He did not, however, commit ``Treason, Bribery, or
other high Crimes and Misdemeanors.'' As such, I consider the
Majority's approval of articles of impeachment to be a lawless
overreach, setting a terrible precedent for the fate of future
presidents and bound for the condemnation of history.
The historical precedents and the writings of our Founding
Fathers indicate that the impeachment of a president is
justified only by presidential conduct which clearly,
concretely, and convincingly demonstrates that that president
lacks the capacity to govern. In other words, impeachment is a
means of saving our nation from a president who is unable or
unwilling to fulfill his or her core responsibilities or
respect the boundaries of his or her power.
President Clinton's conduct, though shameful, does not
speak clearly, concretely, and convincingly to his capacity to
govern. t does tell us that he is reckless in his private life
and willing to deceive those who inquire about his
recklessness. Yet it just as clearly tells us that this man is
far from unmindful of or uncaring about his obligation to act
lawfully. Indeed, in reviewing the president's acts of
governance, I see no failure to execute our laws properly and
no lack of respect for the boundaries of the presidential
power.
Making sweeping conclusions about a president's capacity to
govern based on his or her private misdeeds sets a terrible
precedent. It is telling that the one presidential impeachment
which enjoys history's stamp of approval focused on allegations
involving the abuse of presidential power, including using the
CIA to impede an FBI investigation of a politically motivated
break-in and carrying out a regime of political repression from
the White House. In fact, the Watergate-era House Judiciary
Committee appears to have recognized the danger of speculating
wildly about a president's capacity to govern on the basis of
his or her private misdeeds, when it expressly rejected an
article of impeachment alleging that former President Richard
Nixon committed tax fraud.
We have heard much about the rule of law during the
impeachment process. Our Chairman at one point implied that our
society will gravitate towards the horrors of Auschwitz should
we fail to impeach this president for allegedly lying under
oath. Even less excessive formulations of this argument lack
merit. The American people are smart enough to know the
difference between right and wrong or legal and illegal, and to
recognize that presidents who engage in wrongful or illegal
conduct are not worthy of emulation in certain respects.
Moreover, no amount of dramatic rhetoric should distract anyone
from the fact that this president remains subject to indictment
and prosecution for any illegality he might have committed--
whether we impeach or not.
The vote by the Majority to impeach President Clinton was
the culmination of a process which, I believe, was a credit to
neither the Constitution nor the House Judiciary Committee. The
Majority voted to impeach this president for allegedly
obstructing justice, even though it failed to call material
witnesses to resolve key conflicts in testimony that go to the
very heart of the obstruction of justice case it seeks to make.
In terms of calling witnesses, the Majority instead summoned
before the committee two individuals who had been convicted of
perjury in a court of law, as if that were sufficient to
establish that the president committed ``high Crimes and
Misdemeanors.'' The House dumped the independent counsel's
gratuitously salacious Referral onto the Internet without
having read it first. In short, the Majority acted as little
more than a ready conduit for scandal between the Office of the
Independent Counsel and the Senate.
And at the end of the process, during the committee's
debate on articles of impeachment, members of the Majority
suggested that its approval of articles of impeachment had
little to do with the president's prospects for remaining in
office. Rather, impeachment was merely the ``ultimate
censure,'' or a ``scarlet letter.'' Their objective in making
this argument is clear. That objective is to impeach the
president without alerting the American people to the fact that
impeachment is the House's sole contribution to a process by
which a president stands to be removed from office. With
public opinion arrayed strongly against the removal of this
president from office, avoiding the ``r word'' (``removal'')
might make for smart political spin. But it is just as clearly
a stunning abdication of responsibility and accountability for
the clear import of the Majority's actions. If one supports the
removal of this president, let him or her simply say so, rather
than absurdly pretending that impeachment has nothing to do
with removal.
It is for these reasons that I fear not only how history
will treat what has been done in the name of the House
Judiciary Committee but also how those actions will shape
history. Shall the vote and debate over whether or not to
impeach the President of the United States exhibit the same
degree of partisan division and rancor as the votes we cast on
such issues as school vouchers and committee ratios? If so,
perhaps impeachment will be viewed by generations-to-come to be
of no greater gravity than those lesser issues. Shall an
independent counsel's fact-finding be the sole factual record
upon which the House Judiciary Committee votes to impeach a
president? If so, I would suggest we have much to fear. Indeed,
both parties have at different times recognized that
independent counsels are hardly infallible in terms of their
methods, motives, and conclusions.
Accordingly, I strongly dissent from the decision to
impeach President Clinton. We should instead enact a resolution
strongly disapproving of the president's conduct. Enactment of
a censure resolution would fulfill the House's dual
responsibility to express outrage over the president's conduct
and to confine impeachment to cases truly involving ``Treason,
Bribery, or other high Crimes and Misdemeanors.'' It would
punish the president by inflicting a lasting wound to his
historical legacy. Just as importantly, it would avoid
punishing this country with an unjustified impeachment and a
contentious Senate trial.
Marty Meehan.
DISSENTING VIEWS OF HON. WILLIAM D. DELAHUNT
I oppose the articles of impeachment as reported by the
Judiciary Committee. I agree with much of the reasoning
included in the Minority's Dissenting Views. However, I write
separately to clarify my own perspective on a number of
matters, including the reliability of the allegations upon
which the case for impeachment is based.
I neither condone nor excuse the President's admitted
misdeeds. However, I agree with my Minority colleagues that the
allegations, even if true, do not form a constitutionally
sufficient basis for impeachment. Whatever the Founders meant
by ``high Crimes and Misdemeanors,'' it is well-established
that impeachment should be reserved for situations in which the
incumbent poses so grave a danger to the Republic that he must
be replaced before finishing his term of office. The Majority
has utterly failed to establish that such is the case here.
As for the allegations themselves, however, I do not
believe the Minority is in any better position to assess their
accuracy then the Majority. The committee took no direct
testimony in this matter. We called not a single witness who
could testify to the facts. Instead, we relied solely on the
assertions contained in the referral of the Independent
Counsel. Those assertions are based on grand jury testimony and
other information--much of it ambiguous and contradictory--
whose credibility has never been tested through cross-
examination.
Even absent such evidentiary problems, Article II of the
Constitution imposes upon the committee a solemn obligation--
which it may not delegate to the Independent Counsel or any
other individual--to conduct a thorough and independent
examination of the allegations and make its own findings of
fact.
By failing to do this--by merely rubber-stamping the
conclusions of the Independent Counsel--we have not only failed
to establish a factual basis for the charges set forth in the
articles of impeachment, but have abdicated our constitutional
role to an unelected prosecutor and recklessly lowered the bar
for future impeachments. In so doing, we have sanctioned an
encroachment upon the Executive Branch that could upset the
delicate equilibrium among the three branches of government
that is our chief protection against tyranny.
A related casualty of our cavalier approach to this
investigation has been the due process to which even our
Presidents are entitled. We released the referral--including
thousands of pages of secret grand jury testimony--within hours
of its receipt, before either the Judiciary Committee or the
President's counsel had any opportunity to examine it. We voted
to initiate a formal inquiry against the President without even
a cursory review of the allegations. We required the
President's counsel to prepare his defense without knowing what
charges would be brought. And we released articles of
impeachment--drafted in secrecy by the Majority alone--before
the President's counsel had even finished his presentation to
the committee.
Having put before the public a one-sided case for the
prosecution, some members of the Majority actually suggested
that the President had the burden of proving his innocence.
When he attempted to do so, those same members accused him of
``splitting hairs.''
This was perhaps the most disturbing aspect of our
proceedings. We live in a nation of laws, in which every
person--whether pauper or President--is entitled to due
process. This has nothing to do with ``legal hairsplitting.''
It